TOSSMAN v. NEWMAN

Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.

TOSSMAN v. NEWMAN.

Civ. 17706.

Decided: October 18, 1950

Alvin G. Greenwald, Los Angeles, and Leonard G. Ratner, Beverly Hills for appellant. Roger E. Kelly and Bauder, Gilbert, Thompson, Kelly & Veatch, Los Angeles, for respondent.

From a judgment in favor of defendant after trial before a jury in an action to recover damages for injuries received by plaintiff in a collision between defendant's automobile and a motorcycle upon which plaintiff was riding, plaintiff appeals.

Facts: The evidence being viewed in the light most favorable to respondent (defendant), it appears that on May 3, 1948, defendant was driving his automobile in a westerly direction on Sunset Boulevard at about 35 miles per hour, and after giving a hand signal for more than 60 feet indicating that he intended to make a left turn, he started to make a turn into a private driveway. He slowed down to about 5 miles per hour, and as he did so he observed plaintiff approaching in an easterly direction in the south lane of the boulevard on a motorcycle, traveling at approximately 35 miles per hour and about 35 feet away. At the same time plaintiff observed defendant and in an effort to prevent a collision turned to the right, increased the speed of his motorcycle and drove in front of defendant's car. The left front fender of defendant's automobile struck the left side of plaintiff's motorcycle with resulting injuries to him. The view of each party was unobstructed for over 300 feet, except for other traffic which may have been on the road.

Questions: First: Did the trial court commit prejudicial error in refusing at plaintiff's request to give the jury the following instruction?

‘Section 81 of the Vehicle Code provides: ‘Street’ or ‘highway’ is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.

‘Section 86 of the Vehicle Code provides: ‘Intersection’ is the area embraced within the prolongation of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways, of two highways which join one another at approximately right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.

‘Section 540 of the Vehicle Code provides: The driver of a vehicle intending to turn left at an intersection shall approach in that portion of the right half of the roadway nearest the center line thereof and after entering the intersection, the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered unless otherwise directed by markers, buttons, or signs.’

This question must be answered in the negative. In the present case the evidence disclosed that the road in question was not a highway but a private driveway. Hence the foregoing instructions were not applicable since they would be applicable only where the facts involve an intersection as defined under sections 81 and 86 of the Vehicle Code. The area where the accident occurred in this case did not fall within the definitions prescribed by the Vehicle Code.

The trial court, however, properly instructed the jury as to defendant's duty of care while turning to the left at his private driveway. Section 544 of the Vehicle Code was read to the jury.

Second: Was the verdict for defendant supported by the evidence?

This question must be answered in the affirmative. From the evidence set forth above the jury was justified in believing that plaintiff was contributorily negligent since his view was unobstructed for more than 300 feet, and he did not see defendant's automobile until he was about 35 feet from the point of impact. Also the jury may have believed that plaintiff was contributorily negligent in turning to the right, speeding up his motorcycle and passing in front of defendant's automobile. Where, as in the present case, conflicting inferences and conclusions may be drawn from the evidence an appellate court is bound by the findings of the trial jury.

Third: Did the trial court commit prejudicial error in sustaining objections to questions asked defendant by plaintiff on cross-examination?

This question must be answered in the negative. Prior to the trial of the action plaintiff took the deposition of defendant. At the trial plaintiff read the deposition into evidence. When plaintiff rested his case defendant's counsel adopted the testimony of defendant introduced through his deposition and then asked him a few additional questions, whereupon the following questions were asked by plaintiff's counsel, to which objections were made and the court sustained the objections:

‘Q. Just a minute. Mr. Newman, you stated, it is a fact, is it not, that you arrived at the studio at 11:30 on this day? A. Approximately, yes.

‘Mr. Kelly: Asked and answered. It has been read, the complete testimony was read this morning.

‘The Court: Sustained.

‘Mr. Greenwald: Your Honor, I am cross-examining at this time.

‘The Court: Nothing to cross-examine, he just asked a couple of questions.’ * * *

‘Q. Did you when you were at either N–3 or N–1 look westerly on Sunset to see if there were any vehicles approaching? A. Indeed I did.

‘Q. And what did you see? A. I saw nothing all all, no vehicle of any sort.

‘Q. And was it after you had looked or during the time that you were looking that you made, started to execute your turn? A. Would you ask that question again, please?

‘Mr. Greenwald: Mr. Reporter?

‘Mr. Kelly: Your Honor, in the interest of saving time I am going to object to this line of questioning as improper cross-examination, having been asked and answered, went into thoroughly at the deposition that was read this morning. We are just going over the same thing.

‘The Court: Sustained.

‘Mr. Greenwald: Well, your Honor, as I understand it, counsel has made a deposition a part of his direct testimony. Now I believe that it is my right to cross-examine with reference to the statements that were made and to show that the witness' statements are not correct but in fact are improper as I believe there are contrary statements in the deposition.

‘Mr. Kelly: You asked all the questions at the time of the deposition, counsel.

‘The Court: Sustained.’

The law is established in California that where a question to which an objection is sustained does not in itself indicate that the answer to it will be favorable to the party seeking to introduce the testimony, before the ruling will be reviewed on appeal an offer of what is proposed to be proven must first be made to the trial court so that the reviewing court can determine whether the proposed evidence would have been material and beneficial to the party offering it. (Heinz v. Heinz, 73 Cal.App.2d 61, 66, 165 P.2d 967; Price v. Price, 71 Cal.App.2d 734, 738, 163 P.2d 501.) In the instant case the questions to which objections were made did not indicate that the answers would be either material or beneficial to plaintiff, nor was any offer of proof made as to what answers the witness would give to the questions. Hence the foregoing rule is applicable and we will not consider whether the trial court properly sustained objections to the questions or not.

Judgment affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.