Clay W. Rowan and Eugene Dalton, Appellants, v. CABLE

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District Court of Appeal, Second District, Division 3, California.

Elmer ROBINSON et al., Plaintiffs, Clay W. Rowan and Eugene Dalton, Appellants, v. Fred Howard CABLE, Cantlay & Tanzola, Inc., a corporation, and Refiners Cooperation Association, Inc., a corporation, Defendants and Respondents. *

Civ. 24175.

Decided: August 15, 1960

Irving H. Green, Los Angeles, for appellants. Gilbert, Thompson & Kelly, Los Angeles, Harold Q. Longenecker, Van Nuys, Jean Wunderlich, North Hollywood, for respondents.

Elmer Robinson in one action and Clay W. Rowan and Eugene Dalton in another action sued Fred Howard Cable, Refiners Cooperative Association, Cantlay and Tanzola Corporation and others for damages for injuries sustained in a collision between a station wagon in which plaintiffs were riding as guests of George Lee, the owner and driver, and a truck and trailer driven by Cable for the above named defendants. Verdict and judgment were in favor of defendants and plaintiffs appeal.

The collision occurred some time after 10 p. m. at a point in Highway 60–70, some 70 miles east of Indio. The highway at that point runs east and west. The station wagon was headed east and the truck west. A short distance westerly of the point where the vehicles collided the highway commences a long sweeping curve to the southeast. At that point the main paved portion of the highway is 18 or 20 feet wide with a broken white line down the center. On either side there is a paved macadam shoulder from 4 to 6 feet wide. The collision occurred after the station wagon had entered the sweeping curve and before the truck had left it. Except for occasional depressions the highway over that part of the desert is practically level. The curve in the highway is an S curve; looking eastward the long curve commences on a level, straightens out through a depression for the better part of a mile through a dry wash and then rises and extends easterly. There was no obstruction to the vision of either driver and no evidence that either would have been prevented from seeing the vehicle of the other, at least during the last 300 yards of their approach. Cable testified that he was in the curve when he saw the station wagon at a distance of about 300 yards. Robinson, who was in the rear seat, testified that when he first paid attention to the truck he observed its headlights about 100 yards away, and later red lights, and Rowan, who was in the front seat, testified that when he first saw the truck it was about 300 yards away. Cable, Robinson and Rowan testified to the circumstances of the collision; Dalton, due to his injuries, had no recollection of what took place after the parties left Indio. Lee died in the accident. There were no other eye witnesses to the accident.

Robinson and Rowan both testified that when they first saw the truck, or its lights, it was partly upon the south half of the highway, the truck itself returned to the north half of the highway just before the collision, but the trailer was still partly on the south half of the highway when it and the station wagon came together. The station wagon, they testified, was on the south half of the highway and did not change direction before the collision. Robinson testified that at about the time the truck turned back onto the north side he called to Lee to look out, but that the collision followed instantaneously. Cable was called by plaintiffs under section 2055, Code of Civil Procedure. He testified that his equipment was 58 feet long and consisted of a truck and gasoline trailer; that it was at all times on the north half of the highway, his left front wheels about one foot north of the center line. The truck had single front wheels with a set of dual wheels to the rear of the cab. The gasoline trailer had two sets of dual wheels. Cable testified that the front of his truck was struck by the front of the station wagon. The physical evidence and the opinion evidence of the other witnesses was that the vehicles came together not on the front of the truck but on the left side and rear wheels of the trailer.

The entire front end and left side of the station wagon were crushed and the left front wheel was knocked off, leaving the brake drum. The station wagon was thrown to the right and sidewise for 33 feet and came to rest on the edge of the highway headed southwesterly. The rear axle of the trailer and attached wheels were knocked off; they went in a northwesterly direction and came to rest 153 feet north of the highway and 102 feet westerly of the point where debris lay on the highway. For convenience we shall refer to the place where the debris was as point 1. It was 5 feet north of the center line. The truck continued on and came to rest far off the highway 674 feet northwesterly of point 1. On its way to rest the truck struck and knocked down three highway signs which left white paint marks on the front and side of the left front fender. While Cable testified there was some blue paint on the left front fender of the truck and that the station wagon was painted blue, photographs of the front of the truck and the testimony of other witnesses failed to disclose any other evidence that the front end of the truck had been struck.

C. J. Mann, a witness for defendants, was driving a car behind the truck; for several miles he had been within about 800 yards of it, both traveling around 45 miles an hour; he had not seen the truck on the south half of the highway but lost sight of it in the curve and came in sight of it immediately after the collision had occurred. His son-in-law Brookshire was following, but did not witness the collision. Mann cleared some of the chrome and glass from the highway and placed it near the station wagon; he and Brookshire set out flares. However, much debris remained to clearly identify the point of impact.

Some 20 minutes after the accident Sergeant Agee and Officers Mehl and O'Connell arrived on the scene. Mehl was in charge of the investigation and O'Connell was assisting him. They were subordinates of Sergeant Agee, who was acting as supervisor of the investigation. He took three photographs which were received in evidence.

Cable, Mann and the three officers testified to having observed debris, skidmarks and gouges in the highway. These were clearly shown on the photographs taken by Sergeant Agee. O'Connell testified there was water on the pavement at point 1. The debris and marks shown on the photographs were identified by these witnesses as those which they observed at the scene of the accident. The truck left 60 feet of skidmarks leading up to point 1 and for 20 feet beyond that point. Two of these skidmarks which were shown on the photographs were left by one set of dual tires. They were about 10 inches apart. The right hand or northerly mark is solid and black. The adjoining mark to the south is lighter and ‘chattering,’ or partly solid and partly broken. The skidmarks started 2 feet north of the center line; at point 1 they were 5 feet north of the center. (Reference will be made later to another set of dual skidmarks described by Sergeant Agee.)

Officers Agee, Mehl and OConnell located the point of impact where glass, caked mud, water and other debris lay on the north half of the highway at point 1. There were deep gouge marks in the pavement commencing some 60 feet west of point 1 and extending obliquely toward the north edge of the highway to a point where the trailer left the highway, and from there on a trail to a point 10 or 12 feet north of the pavement where two signs were knocked down. Also described by Agee, Mehl and Mann were two parallel gouge marks which started at point 1 and curved clockwise across the center line to the southeast, across the center line, to and underneath the station wagon. At the request of counsel these were marked on one of the photographs by Sergeant Agee, but were not otherwise shown. While the distance between these parallel marks does not appear except in the photograph, they would seem to be between 2 and 3 feet apart. Aside from some wreckage at the right rear wheel of the station wagon and a few small objects on the south side of the highway, all the debris shown in the photographs was at point 1. O'Connell testified there was no physical evidence on the south half of the highway indicating that the collision occurred on that side. There was a heavy gouge mark in a circular pattern on the south half of the highway close to the center line and between the two parallel gouge marks previously described. The witnesses were in general agreement that this gouge was made by the left brake drum of the station wagon.

Although Officers Agee, Mehl and O'Connell all participated actively in the investigation previously described, none of them was called to the stand by plaintiffs in proving their case in chief, nor was any evidence offered with respect to the physical conditions on the highway which were later described by the officers. Plaintiffs merely relied upon the testimony of Robinson and Rowan that both the station wagon and the trailer were on the south half of the highway when the collision occurred. After plaintiffs had rested, defendants called Sergeant Agee, who described fully the investigation that was made. Defendants did not then call Officer Mehl but closed their case with respect to the physical conditions after Sergeant Agee had testified. After the defense rested, plaintiffs called Officer O'Connell, who was examined and cross-examined extensively as to his part in the investigation and what he discovered. His testimony was offered by plaintiffs in rebuttal. Plaintiffs also called in rebuttal Stephen Blewett, a consulting chemist and physicist, to testify as an expert with respect to his analysis of the circumstances of the collision. Based upon an examination of the photographs in evidence, Blewett expressed the opinion that the truck and trailer were partly on the south half of the highway when the collision occurred. Officer O'Connell expressed the same opinion, although on a diagram which will be mentioned later he marked point 1 as the point of impact. After the plaintiffs introduced the evidence of O'Connell and Blewett in rebuttal, defendants called Officer Mehl in surrebuttal. This officer was the one primarily charged with the duty of making the investigation and a report of the accident. Thus, O'Connell and Blewett were the only disinterested witnesses upon whose testimony plaintiffs relied to prove the absence of negligence on their part and on the part of Lee and negligence on the part of defendants. This evidence, of course, was a part of plaintiff's case in chief. This unorthodox and supposedly cute method of presenting the evidence of the plaintiffs was obviously planned to gain some strategic advantage. Not to be outdone in supposedly smart trial tactics, defendants withheld the vital testimony of Officer Mehl for introduction as surrebuttal. The court was well aware of the peculiarities in the methods thus employed but allowed counsel to pursue their devious courses, since they were equally at fault. Such sparring for some possible advantage was not only contrary to settled practice but it must have been confusing to the jurors to have the critical evidence presented in such piecemeal fashion.

It may be mentioned at this point that Sergeant Agee testified that there were two sets of dual skidmarks leading up to point 1, one set being toward the north half of the pavement parallel to and about 8 feet distant from the ones previously described, but too light to be shown in the photographs. O'Connell testified that he did not see more than one set of dual skidmarks and Blewett testified that he could see only one set on the photographs. With this exception the testimony of these witnesses with respect to the marks on the pavement did not differ materially from the testimony that had been given by Sergeant Agee and that given later by Officer Mehl.

Blewett assumed that the dual skidmarks shown in the photographs were made by the right wheels of Cable's equipment and upon that assumption expressed the opinion that that equipment at the time of the collision extended several feet into the south half of the highway. We have previously mentioned that the northerly one of the dual skidmarks shown on the photographs was much darker then the one which paralleled it and that the former was uninterrupted while the latter was broken, indicating a ‘chattering’ motion. Blewett's opinion was that the truck equipment was making a left turn and, therefore, the weight was thrown to the right, placing greater pressure on the right hand wheels, from which he deduced that the skidmarks were made by the right tires of the equipment. The physical evidence established that there was solid contact of the front end of the station wagon with the trailer at its rear wheels. There was undisputed evidence that the broken skidmarks indicated ‘chattering’ or uneven braking which would have caused the trailer to weave from side to side.

The claim of error first to be discussed is that it was error to permit Officers Agee and Mehl to express opinions as to the point of impact of the vehicles. The arguments are without merit. The three officers were experienced in the investigation of highway accidents. Each of them took an active part in a thorough investigation and was fully conversant with measurements that were made and other physical facts.

It is not questioned by plaintiffs that officers who are experienced in the investigation of highway accidents may be permitted to express opinion based upon the physical facts observed by them indicating the manner in which the accident occurred. Such testimony is, of course, admissible. Wells Truckways, Ltd. v. Cebrian, 122 Cal.App.2d 666, 265 P.2d 557; Kalfus v. Fraze, 136 Cal.App.2d 415, 288 P.2d 967.

Plaintiffs argue that Agee should not have been permitted to give an opinion as to the point where the collision occurred for the reason that he did not conduct the investigation but acted only as a supervisor, that he discussed the facts with Mehl and based his opinion largely upon what Mehl told him; he took into consideration skidmarks and gouges in the pavement which he did not know of his own knowledge had been caused by the vehicles in question, and he considered also the debris on the pavement although some of the debris that had been there had previously been removed by Mann. These are vain arguments. Officer Agee, who supervised the investigation, based his opinion upon all the facts which he observed and described. He did not ask any of the parties as to their versions of the accident and was given none. He described the gouge marks left by each vehicle and had traced some of them to the station wagon and others along the course of the trailer. His testimony that double gouge marks started at point 1, crossed over the center line and ended at the rear of the station wagon, was not disputed, although O'Connell did not admit having seen them. There were no skidmarks on the south side and no gouge marks except those previously described. Asked upon cross-examination what he took into consideration in fixing point 1 as the point of impact, other than the skidmarks and the gouges, Agee testified: ‘There was some debris on the road, some form of silt, the chunks of dirt from underneath the fenders or bodies of the vehicles always dislodged at the time of any collision. And the angle of the marks, in that there was a continuity to them which led to verious vehicles.’ The skid and gouge marks, as well as the debris are clearly shown on the photographs.

With respect to the testimony of Agee and Mehl, it is argued further that they merely assumed without reason that the skidmarks and the gouges were made by the vehicles in question and not by other vehicles. The argument is unsound. There was evidence that Mann and Brookshire immediately put out flares for at least a quarter of a mile in each direction. They stopped vehicles going in either direction. No vehicle going through skidded its tires. Mann testified that he traced one set of gouges to the station wagon and another set along the path of the truck and trailer. Upon these facts the only reasonable deduction was that the skidmarks and gouge marks were made by the vehicles in question. Any other supposition would have to be based upon unreasoning speculation.

As previously mentioned, the opinion expressed by Blewett that the truck and trailer were partly on the south half of the highway was based solely upon the assumption that the skidmarks shown on the photographs were made by the truck and trailer; thus, plaintiffs are contending that there was insufficient evidence to prove a fact upon which their own essential evidence depended.

With respect to the testimony of Mehl, it it contended that his opinion should not have been received for the reason that Cable told him that the point of collision was to one we have referred to as point 1. Mehl described the skidmarks, the gouge marks that led to the station wagon, and the other gouges that indicated the course of the trailer, and to having observed glass, bits of metal, trim and dried mud on the pavement at point 1. He was asked by defense counsel:

‘Based on the physical evidence which you observed and the damage to the vehicles did you establish the point of impact?

‘Mr. Green: May I ask a question on voir dire in connection with this?

‘The Court: Yes.

‘Q. By Mr. Green: In establishing the point of impact did you rely upon both the debris you found and what the driver of the truck told you? A. And the marks in question.

‘Q. You relied on both what the driver of the truck told you and the debris? A. Yes.

‘Mr. Green: Then we object on the ground it is incompetent, irrelevant and immaterial, hearsay.

‘The Court: Objection overruled. Read the question. (The [former] question of defense counsel was read by the reporter.) A. Yes, I did.

‘Q. By Mr. Kuittinen: Where was that? A. Approximately 5 feet north of the center line in the westbound lane.’

Although the final answer of the witness was that he based his opinion upon the physical facts which he described, it is contended that his testimony was incompetent because he also took into consideration the fact that cable had pointed out to him what he claimed to be the point of the collision. The cases cited by plaintiffs on this point are in line with the statement in Ribble v. Cook, 111 Cal.App.2d 903, at page 906, 245 P.2d 593, at page 594, where it was said: ‘While the opinion of an officer who is trained in investigating accidents may be admissible as to the point of impact, Zelayeta v. Pacific Greyhound Lines, 104 Cal.App.2d 716, 232 P.2d 572, such opinion is not admissible unless based on facts observed by the officer at the scene of the accident. Where the opinion is based on what witnesses told the officer, at least where objection is made, it is error to admit it * * *.’ To the same effect are Stuart v. Dotts, 89 Cal.App.2d 683, 201 P.2d 820 and Kalfus v. Fraze, supra, 136 Cal.App.2d 415, 288 P.2d 967.

Officers who are qualified by training and experience to analyze physical facts observed by them and to make deductions therefrom are permitted to express opinions because of their exceptional skill and ability in that field. But it is a rule of common sense that opinions based upon statements made to them by others and not upon facts they have observed are incompetent. If it were not for the information gained by hearsay they would have no opinions. Such is not the present situation. If Officer Mehl would have reached the conclusions which he expressed without having talked with Cable regarding the point of impact, the fact that Cable indicated to him where the collision occurred would have detracted nothing from the value of his opinion. Defendants sought to disqualify the officer by merely developing the fact that Cable had indicated to him the point of collision and that he took that fact into consideration. The questioning on voir dire was improper. It was merely misplaced cross-examination.

The purpose of a voir dire examination of an expert is to test his qualification to give an opinion. Such was not the purpose of the voir dire examination of Mehl. It did not relate to his qualification. The question he had been asked called for an opinion based solely upon the physical conditions he had observed. He should have been permitted to answer it without interruption. To break into the questioning to inquire whether he had taken some other matter into consideration displayed confusion of cross-examination with voir dire examination. There was ample opportunity for further cross-examination but counsel did not pursue the subject further in order to ascertain what weight, if any, Mehl gave to the statement of Cable. He may have not been influenced at all by it. He clearly stated the physical facts which led to his conclusions and why he relied upon them in fixing the point of impact. Not only was it not shown that he would not have reached the same conclusion if he had not talked to Cable, but he answered that he fixed the point of impact from the physical evidence he observed, and the clear purport of his entire testimony is that he regarded the physical facts as adequate and satisfactory support for his conclusions, and that the statement made by Cable was merely confirmatory of his opinion, and not to any degree the basis of it. His opinion was no better than the reasons he gave for it. If some reasons were sound and sufficient, the fact, brought out on cross-examination, that he may also have given some vague consideration to what Cable told him might have affected the weight of his opinion but it would not have rendered it incompetent.

We find appropriate the following statement of the court in Young v. Bates Valve Bag Corp., 52 Cal.App.2d 86, at page 96, 125 P.2d 840, at page 846: ‘It is no doubt the law, as urged by appellants, that where an expert witness bases his opinion entirely upon incompetent matter, or where it is shown that such incompetent matter is the chief element upon which the opinion is predicated, such opinion should be rejected altogether. San Diego Land, etc., Co. v. Neale, 88 Cal. 50, 25 Pac. 977, 11 L.R.A. 604. But that argement has no application to the facts of this case. The opinion of this expert was not solely predicated on the rules of the Industrial Accident Commission, nor were those rules the basic premise upon which his opinion was predicated. A fair reading of his testimony discloses that the standard testified to by him was one adopted by electrical engineers independently of the rules of the commission. The mere fact that his opinion was partially based on inadmissible sources did not affect the admissibility of his opinion. In such case ‘The expert's testimony, though based on Knowledge gained from inadmissible sources, is entitled to credit because of the added sanction of his general experience.’ Hammond L. Co. v. County of Los Angeles, 104 Cal.App. 235, 248, 285 P. 896, 902; see, also Betts v. Southern Cal. etc., Exchange, 144 Cal. 402, 77 P. 993; People v. Marblehead Land Co., 82 Cal.App. 289, 255 P. 553; Fishel v. F. M. Ball & Co., Inc., 83 Cal.App. 128, 256 P. 493; Glantz v. Freedman, 100 Cal.App. 611, 280 P. 704.' It was not error to permit Mehl to give his opinion as to the point of impact.

Sergeant Agee reached the same conclusions as those reached by Mehl, from the same physical facts, without knowledge of what Cable considered to be the point of impact. Even if Mehl's testimony on the point had been subject to criticism, which we do not suggest, its admission would furnish no ground for holding that prejudicial error was committed. Kalfus v. Fraze, supra, 136 Cal.App.2d 415, 288 P.2d 967.

Under the direction of Agee, Officers Mehl and O'Connell made and filed a report and included in it a diagram of the scene of the accident. Defendants produced a photographic enlargement of the diagram which, with the original diagram, was received in evidence over objection. This ruling is assigned as error.

Before discussing the claim of error in admitting the diagram we turn to the contention that it was error to permit Agee to use the report to refresh his recollection. In the direct examination of Sergeant Agee he was asked whether he wished to refresh his recollection from a copy of the report that was made under his direction. The question was objected to on the ground ‘no showing this officer needs to refresh his recollection, an attempt to impeach his own witness.’ After eliciting that the officer had made other investigations in the two years following the accident, the court ruled that he might use the report to refresh his recollection. Presumably the witness made some use of the report, of which he was given a copy. The objection was properly overruled. The diagram, as well as the remainder of the report, contained much detail. Indicated on the diagram were a number of measurements as to which the witness was to be questioned, namely, the width of the paved portions of the highway, and the shoulders, the distances the vehicles traveled after the impact, the distance between the apparent point of impact and an intersecting road, the points where the vehicles came to rest with relation to other points on the diagram, and other data. It would have been unfair to the witness to refuse him permission to refresh his recollection from the report and the diagram. He was the supervisor of investigations of highway accidents. To have denied him that right could only have resulted in obscuring the facts which he had observed and recorded when the purpose of the trial was to develop them with the greatest degree of accuracy. The objection that the purpose of defense counsel was to impeach his own witness was frivolous.

It was in evidence that plaintiffs' witness, Officer O'Connell, was shown a copy of the report by plaintiffs' investigator when he was sought as a witness and that he also refreshed his recollection by reference to the report.

Permitting the officers to make use of the report did not result in the disclosure of any confidential information or any fact that was not admissible in evidence.

A description of the report is in order. It was on the form used by the Highway Patrol. The first page gave full data as to names, addresses, makes of cars, place of accident, etc. This page contained a diagram of the location, showing dimensions, distances, positions of the vehicles as observed and apparent point of impact 5 feet north of the center line. Page two contains a detailed statement of everything that was observed by the officers. It attributes to Robinson a statement that the parties were going fishing, had several cases of beer in the car and had had supper in Indio with 2 or 3 beers. On the reverse side of page 2 was a statement of the opinion and recommendation of the investigating officer as to responsibility for the accident. Pages one and two bore the signed names of Mehl and O'Connell. Page three contained nothing of importance except a signed statement of Cable as to his speed and that he was on the right side of the road. Pages one and two were for the investigators to sign. Only page three was a form for a driver to sign. None of the plaintiffs signed any of the pages.

Section 484, Vehicle Code* , requires that drivers involved in accidents resulting in death or personal injury make written report of the accident to the Highway Patrol or police department. The names and addresses of persons involved in, or witness to an accident, registration numbers and descriptions of the vehicles and the date, time and location of the accident may be disclosed at any time to the interested parties. Vehicle Code § 488** . At the expiration of six months all the factual data gathered by the officer, together with the signed statements of all witnesses, excepting the reports signed by the drivers involved in the accident, shall be made available to the interested parties. Vehicle Code § 488.5.***

More than six months had elapsed since the accident. At the time of trial no part of the report was confidential except such portions thereof as constituted the written report of Cable. And even an officer to whom a driver makes statements to be placed in the report and which are placed therein may testify to the statements. Carroll v. Beavers, 126 Cal.App.2d 828, 273 P.2d 56, 59 A.L.R.2d 263.

Officer Mehl was asked by one of defense counsel whether the diagram showed the point of impact with reference to the center line of the highway; he answered in the affirmative. Plaintiffs' counsel then said:

‘Mr. Green: That is objected to as not the best evidence; incompetent, irrelevant and immaterial.

‘The Court: In other words, you claim the diagram itself is the best evidence?

‘Mr. Green: I made my objection, your Honor. I don't want to argue each objection with the Court.

‘The Court: You can argue that one. I would like to ask some information.

‘Mr. Kuittinen: In view of that objection I offer the official report presently on file with the Highway Patrol Department in the Indio station.

‘Mr. Green: We object to that as incompetent, irrelevant and immaterial no proper foundation laid. Counsel knows it is not admissible in evidence, and I cite as misconduct his offer of it, in evidence.

‘The Court: If you want to argue it, we will argue it in chambers. I am inclined to believe the diagram is admissible.’ (Italics ours.)

Thereafter, defendants offered in evidence the report itself, including the diagram. Objection being made, the court ruled that the report, except for the diagram, was inadmissible under Vehicle Code § 488. The diagram itself and the enlargement were received in evidence.

Section 488 provides that the report made by a driver is inadmissible in evidence. The only part of the report that was inadmissible under Section 488 upon the ground of its confidential nature was the signed statement of Cable. Nothing else was confidential. We discuss this matter because it appears to be contended that it would be a violation of Section 488 to permit a witness to refresh his recollection from the report and that the diagram was confidential.

The diagram was a part of the report of the officers, but not of Cable's report, and was not within the purview of Section 488.

The diagram was inadmissible as hearsay to prove anything that was inscribed upon it. It was objected to on that ground and other grounds. It was not admitted for the purpose of proving any fact, but only to illustrate the testimony of the witnesses. Defense counsel so stated. Every direction, measurement, distance and location of objects shown on the diagram was testified to by the witnesses in infinite detail. If it had been offered to prove any fact in the case an objection upon the ground of hearsay should have been sustained, but it was not improper to admit the diagram as an aid to the jury in understanding the testimony of the witnesses to which it related.

Robinson drew a large diagram which was received in evidence. It illustrated his testimony with respect to the positions and courses of the vehicles, the point where he claimed they came together and various estimated distances. O'Connell drew a similar diagram which was offered in evidence by plaintiffs and received. On this diagram O'Connell placed the physical objects and positions which he had observed, including the skidmarks, gouge marks, measurements which he had made and the paths of the cars.

Plaintiffs could not possibly have suffered prejudice from the receipt in evidence of the diagram or the enlargement.

At the request of defendants, the court instructed on contributory negligence as set out in the margin.1

It is contended it was error to so instruct for the reason there was no evidence whatever of contributory negligence on the part of any plaintiff.

It was error to give the instructions. They were so worded as to be applicable to the conduct of each plaintiff.

The fact did not warrant an instruction on contributory negligence. It is unrealistic to impose upon a passenger a duty to act as a supervisor of his driver and to warn him of every approaching vehicle or other possible source of danger. Robinson and Rowan testified that they saw the lights of the truck on the south half of the highway. Doubtless they believed that to be a fact and they had reason for the belief, even though they were mistaken. The station wagon was proceeding in a straight line. It did not alter its course to follow the curve in the highway. The truck was on the curve, and its lights necessarily appeared to the right of the center line. To anyone unaware of the curve in the highway the truck would have appeared to be on the wrong side of the road, even though it was on the right side. And if it was seen on the wrong side at a distance of 100 yards or 300 yards there would have been time to get it back onto the right side. When all the conditions are considered, the time of night, the curve in the road, the speed of the vehicles of 45 or 50 miles an hour, and the reaction time required to appraise the situation, to give warning and to act upon the warning, a finding that any of the plaintiffs was negligent would have been most unreasonable. But we are convinced that the instructions could not have influenced the verdict.

The evidence that the collision occurred on the north half of the highway was overwhelming. The testimony of officers Agee and Mehl and the original conclusion of O'Connell that the vehicles came together at a point 5 feet north of the center line was corroborated to the point of demonstration by the undisputable physical conditions which they described and which were depicted upon the photographs. The debris consisted of broken glass, dried mud and water; the skidmarks and gouge marks proved conclusively that the vehicles came together 5 feet north of the center line. Of course, if the vehicles came together at that point, the truck and trailer were on the right side of the road and the station wagon on the wrong side.

As previously mentioned, the opinion of Blewett that the skidmarks were made by the right wheels of the truck and that therefore both the truck and trailer were partly on the wrong side of the road was contradicted by all the relevant physical facts, and supported by none. It was founded upon the supposition that the truck was making a left hand turn, thus throwing the greater weight onto the right tires. But it was not making a left turn. That was demonstrated by the skidmarks. They did not follow the curve in the highway. They followed a straight line, starting 2 feet north of the center line, continuing for 60 feet to a point 5 feet north of the center line, and 20 feet beyond. In view of that fact, the theory of Blewett was fallacious. O'Connell expressed the opinion that the truck was partly on the south half, but he could give no reason for the opinion, and he admitted that in drawing the diagram he placed the point of collision as indicated by the physical evidence, namely, 5 feet north of the center line.

The explanation of the heavy black skidmark and the chattering mark and the absence of other equally plain marks is that the brakes locked one dual left wheel, intermittently locked the other dual wheel that made the chattering marks, and did not retard the movement of either one of the wheels on the north end of the axle to an extent that caused them to leave distinct skidmarks. The physical evidence demonstrated that the brakes and wheels operated in that manner. No one attempted to explain why, although Sergeant Agee and Blewett both stated there were several conditions which could have accounted for the inequality of the skidmarks. One could have been variations in the smoothness of the surface of the highway. In view of the incontrovertible evidence that the station wagon was on the north side of the road, the only logical conclusion, and undoubtedly the one which the jury reached, is that Cable was driving on the north half of the highway and was not guilty of negligence. Having found that fact, the jury would have had no occasion to consider the question of contributory negligence.

Another contention is that one of the attorneys for defendants was guilty of misconduct in that he repeatedly in his questions emphasized the fact that the report filed by the officers was an official document. It is true that the attorney kept harping on the fact that the report was ‘the official California highway report’ and that it was on ‘California Highway Patrol Form No. 110.’ Unquestionably, the purpose was to insinuate that the report was some sort of an official document which carried great weight, and that it was altogether favorable to defendants. It is difficult to believe that the constant references to it and the attempt to have it introduced into evidence were in good faith. Such practice of injecting argument into the interrogation of witnesses and the offering of evidence known to be inadmissible is neither fair nor ethical. But the report was not received in evidence, nor was it intimated that it contained anything that was not fully described by the witnesses. Misconduct, as a ground for reversal of the judgment, is not shown.

In the briefs of plaintiffs reference is made to some 40 different passages in the reporter's transcript in which it is contended the court erred in permitting defense counsel, over objection, to ask leading questions and questions calling for conclusions of the witnesses. It is said in the brief ‘Time after time, erroneous rulings of the trial court overruling proper and valid objections indicated judicial bias to the jury. The trial court displayed apparent hostility; the cumulative effect of the errors necessarily was prejudice.’ The statement that the trial judge was biased and hostile toward the plaintiffs is highly disrespectful to the court and is not borne out by the record. It appears to us that the judge was eminently fair and patient, under somewhat trying conditions.

The judgment is affirmed.


FOOTNOTE.  Now Vehicle Code 1959, §§ 20008, 20009.

FOOTNOTE.  Now Vehicle Code 1959, §§ 20012, 20013.

FOOTNOTE.  Now Vehicle Code 1959, §§ 20014, 20015.

1.  ‘I have heretofore instructed you that plaintiffs Elmer Robinson, Clay W. Rowan, Eugene Dalton, as guests, riding in decedent's automobile, were required to exercise that degree of care for their own safety as an ordinary prudent person would exercise under the circumstances. ‘In determining what that degree of care is you must have in mind the ordinary prudent person, in the ordinary possession of his faculties as I have heretofore defined such person to you. ‘Plaintiffs, as passengers in decedent's automobile were required to use ordinary care for their own safety. If you find that they or any of them were aware that the decedent was carelessly operating the automobile, or was carelessly rushing into danger, provided you find that it was operated in that fashion, it is incumbent upon such plaintiff to take such steps as an ordinary prudent person would take under the same circumstances for his own safety. ‘If you find from the evidence that any of the plaintiffs herein could by the exercise of reasonable care have discovered the approach of the truck involved in the accident in time to warn the decedent of the approach thereof and enable the driver to avoid a collision, but that such plaintiff failed to do so, and if you further find that such failure was negligent and that such negligence directly caused or contributed to cause plaintiff's injuries, if any, then the plaintiff is not entitled to recover against the defendants.’

SHINN, Presiding Justice.

FORD, J., concurs. VALLEE, J., dissents. Rehearing denied: VALLEE, J., dissented.