Reset A A Font size: Print

Court of Appeal, First District, Division 1, California.

Tracy M. KIPP, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents.


Decided: August 11, 1983

Law Offices of Michael James Moriarty, Rex Blackburn, San Francisco, for plaintiff and appellant. Timothy Murphy, Deputy City Atty., San Francisco, for defendants and respondents.

The appeal before us was taken by plaintiff Tracy Kipp from an adverse judgment, based upon a jury's verdict, in her action for damages for personal injuries claimed to have been proximately caused by the municipal railway system (Muni) operated by defendant City and County of San Francisco.

I. It is first contended that:  “Evidence of defendant Benjamin Pasco's habit or custom of running ahead of schedule was improperly excluded at the trial to the prejudice of plaintiff's case.”

Certain of the relevant facts were undisputed.

Plaintiff Tracy Kipp (Tracy), 16 years old, was on December 15, 1976, a passenger on a Muni streetcar approaching the intersection of Second and Market Streets, San Francisco.   At the intersection the streetcar stopped, and Tracy stepped onto a “traffic island” placed for the convenience and safety of boarding and alighting passengers.   The streetcar moved on, and another, traveling in the same direction and operated by defendant Benjamin Pasco (Pasco), approached.   In some manner Tracy's foot came under the wheel of Pasco's streetcar, causing serious injuries to her.

The factual circumstances leading to Tracy's injuries were, as might be expected, in dispute.

Tracy testified that upon alighting from the streetcar she walked down the island toward the intersection where she stopped, and there waited for the cross traffic signal across the street to change to “walk.”   When the signal so changed, according to her testimony, “I stepped off the island, and before I knew it I was hit on the left side of my body by a streetcar and—I hit the ground․  Then I dropped everything in my hands.   I was laying on the tracks and I started to roll back over, kind of shaken, and the streetcar was right on top of me, before I could do anything.”

Pasco, on the other hand, testified that he stopped his streetcar at the intersection and waited for the signal light ahead to change.  “It turned green after a second or so” and he started through the intersection.   After he started, he “caught her in [his] peripheral vision.”   He then said, “I had moved forward already, and then she went in front [sic] of the streetcar,” and he “saw her walk into the side [sic] of the streetcar.”   Thereafter he elaborated that Tracy had walked into the “side” of his streetcar.

It will be seen that the respective credibility of the parties was a major issue of the case.

During the trial, and out of the jury's presence, Tracy made an offer of proof.   The offer consisted of previous depositional testimony of Pasco's Muni supervisor, and 25 exhibits found in Pasco's disciplinary record with Muni.

In Pasco's supervisor's deposition the following questions and answers had been asked and given:

“Question:  O.K.   With that number of scheduled violations, running ahead of schedule, in the period of time represented here, which is February of 1973 through November of 1976, [would this] represent an unusual number of incidences of [the] driver running ahead of schedule.

“Answer:  I think that it is a little high, yes.

“Question:  Did Mr. Pasco exhibit while you were his supervisor, a habit or custom of running ahead of schedule, in your opinion?

“Answer:  Well, six violations in a year is a little higher than normal.

“Question:  Do you recall yourself ever giving any counsel to Mr. Pasco about running on schedule?

“Answer:  Yes.

“Question:  Was he receptive to your counseling?

“Answer:  I thought so, yes.

“Question:  Did problems continue after you counseled him?

“Answer:  To a point I think he improved.

“Question:  But he was still having some problems of being ahead of schedule?

“Answer:  To the best of my recollection, he was still, yes, sir.

“Question:  Did you reach some opinion as to what the reason was for his running ahead of schedule?

“Answer:  Well, he didn't seem to think it was important to run on time.”

The proffered, and here unchallenged, description by Tracy of Pasco's disciplinary record follows:

“Exhibit 1:  Superintendent's Disciplinary Charge (hereinafter ‘SDC’), 12/27/73—6 minutes ahead of schedule;

Exhibit 2:  SDC, 2/3/74—2 minutes ahead of schedule;

Exhibit 3:  SDC, 3/30/74—2.5 minutes ahead of schedule;

Exhibit 4:  SDC, 6/11/74—blocking pedestrian crosswalk and stopping too close to preceding car;

Exhibit 5:  SDC, 7/8/74—following too closely;

Exhibit 6:  SDC, 7/30/74—2.5 minutes ahead of schedule;

Exhibit 7:  SDC, 2/7/75—failure to make compulsory stop;

Exhibit 8:  SDC, 4/19/75—2.5 minutes ahead of schedule;

Exhibit 9:  SDC, 7/7/75—failure to stop for passengers;

Exhibit 10:  SDC, 2/7/76—ahead of schedule 4 minutes and 5 minutes respectively;

Exhibit 11:  SDC, 5/26/76—3.5 minutes ahead of schedule;

Exhibit 12:  SDC, 7/8/76—2.5 minutes ahead of schedule;

Exhibit 13:  SDC, 8/8/76—2 minutes ahead of schedule;

Exhibit 14:  SDC, 9/5/76—failure to make safety stop;

Exhibit 15:  SDC, 9/25/76—4 minutes ahead of schedule;

Exhibit 16:  SDC, 9/26/76—3.5 minutes ahead of schedule indicating one day suspension for 7th schedule violation this year and second this month;

Exhibit 17:  SDC, 11/7/76—3.5 minutes ahead of schedule;

Exhibit 18:  Notice of Suspension 10/22/75 (ahead of schedule violations);

Exhibit 19:  Notice of Suspension 10/5/76 (ahead of schedule violation);

Exhibit 20:  Notice of Suspension 9/29/76 (ahead of schedule violation);

Exhibit 21:  Exhibit 21A through D:  Employee's personnel record card (providing summary of disciplinary action);

Exhibit 22:  San Francisco Public Utilities Commission Bureau of Personnel and Safety, Form 1, 6/8/73—avoidable accident caused by Mr. Pasco's not using due caution when passing objects close to track;

Exhibit 23:  Notice of Suspension 7/30/73—accident resulting from following too closely;

Exhibit 24:  Letter dated 7/21/73 regarding 15 day suspension and question as to credibility of Mr. Pasco;

Exhibit 25:  Exhibit 25A and B:  Employee's accident record card regarding Mr. Pasco, and listing thirteen accidents prior to December 15, 1975.”

The evidence was offered pursuant to Evidence Code section 1105 which provides:

“Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”

Rejecting the proffered evidence, the trial court stated:  “I am going to grant the defendant's motion.   What we are talking about here, there is no evidence in this case of speed.   There is a—one of the questions is whether the streetcar ran the stop light or jumped the stop light.   Jefferson points out:  ‘Habit refers to a regular, consistent response to a repeated situation, while character refers to a person's general disposition or propensity to engage in certain types of conduct.’   And the example Jefferson gives is totally in point.   For example, if there were a witness who would testify that he has regularly ridden on the car with Mr. Pasco, preceding the accident, for six months, and he habitually ran the stop sign at Second and Market, I would have no hesitancy in allowing it in.   But it is not a question of speeding.   It is a question of jumping the stop light.   Aside from that, the court views it as character evidence, rather than habit, and even if it were habit, which it is not, the court would exclude it under 352.”

 We respectfully disagree with the trial court's ruling.

The rejected evidence reasonably tended to establish Pasco's persistent habit of moving his streetcar faster than necessary, or permitted by Muni's rules.   From it the jury might reasonably have inferred that such inordinate haste was usually accomplished by traffic violations in aid of it, such as prematurely anticipating traffic signal changes.   And under Evidence Code section 1105, the jury would have been permitted to conclude that Pasco's conduct on the day of the accident was “in conformity with” his established habit or custom.

Such evidence of habit or custom has been admitted as tending to establish one's litigated conduct, where his habit was, to jump from railroad trains while they were in motion (Craven v. Central Pacific R.R. Co., 72 Cal. 345, 13 P. 878), to operate his motorcycle at excessive speed (Boone v. Bank of America N.T. & S. Assn., 220 Cal. 93, 29 P.2d 409), to normally stop at railroad crossings (Wallis v. Southern Pacific Co., 184 Cal. 662, 195 P. 408), to keep his place of business “neat and clean” (Romeo v. Jumbo Market, 247 Cal.App.2d 817, 56 Cal.Rptr. 26), and to lock the doors of his automobile (In re Charles G., 95 Cal.App.3d 62, 156 Cal.Rptr. 832).

 We are unpersuaded that the here questioned evidence was more in the nature of “character” evidence of one's general “disposition” (see Witkin, Cal.Evidence (2d ed. 1966) § 323(2), p. 286) which may not, under Evidence Code section 1104, be admitted to prove one's conduct “on a specified occasion.”   Such evidence is generally of a witness' subjective impression of another, and has “slight probative value” (see Law Revision Commission Comment, Deering's and West's Ann.Evid.Code, § 1104), as compared to specific instances of repeated conduct indicating habit or custom.

 Nor, in our opinion, was the proffered evidence reasonably excluded under Evidence Code section 352.

Evidence Code section 352 recites:

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

It seems patent that the ordinarily admissible evidence of habit or custom rejected by the trial court had no tendency to confuse or mislead the jury, or necessitate undue consumption of time.   The manifest reason of the court was that it would create “substantial danger of undue prejudice.”

 Evidence Code section 351 provides that:  “Except as otherwise provided by statute, all relevant evidence is admissible.”   The statute is an implementation of the basic constitutional right to be heard.   Such “is the very essence of due process” (Hendricks v. Superior Court, 81 Cal.App.3d 950, 954, 146 Cal.Rptr. 798), and it necessarily assures the right to present witnesses and relevant evidence to a fact finding tribunal, to establish, or in defense of, one's rights.  (See Washington v. State of Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019;  Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297.)

No purpose is seen in section 352 to abrogate or hinder one's right to produce relevant evidence in his behalf.   Instead:  “The discretion granted the trial court by section 352 is not absolute ․ and must be exercised reasonably in accord with the facts before the court.”  (Brainard v. Cotner, 59 Cal.App.3d 790, 796, 130 Cal.Rptr. 915;  and see Thor v. Boska, 38 Cal.App.3d 558, 567, 113 Cal.Rptr. 296;  People v. Mascarenas, 21 Cal.App.3d 660, 667, 98 Cal.Rptr. 728;  Roemer v. Retail Credit Co., 3 Cal.App.3d 368, 373, 83 Cal.Rptr. 540.)

The concept of section 352's “undue prejudice” is, we think, widely misunderstood.   Many equate the term with strong proof of lack of merit in one's adversary's case or defense.   The meaning is otherwise.  “Where the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference, the testimony must be received over a section 352 objection absent highly unusual circumstances.”  (Emphasis added;  In re Marianne R., 113 Cal.App.3d 423, 428, 169 Cal.Rptr. 848;  Kessler v. Gray, 77 Cal.App.3d 284, 292, 143 Cal.Rptr. 496.)   And it is held that where proffered evidence “was directly relevant to critical issues” and “highly probative,” and “it did not appear that the evidence would produce a danger of undue prejudice, of confusing the issues, or of misleading the jury [the] exclusion of the testimony cannot be upheld under Evidence Code section 352.”  (Stone v. Foster, 106 Cal.App.3d 334, 352, 164 Cal.Rptr. 901.)

The federal judicial system's evidentiary rule 403, (Fed.Rules Evid., Rule 403, 28 U.S.C.A.) closely follows Evidence Code section 352.   It states:  “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”  (Emphasis added.)

Judicial decisions concerning such federal statutes and rules are often useful in the interpretation of near identical provisions of statutes of this state.   (Widdows v. Koch, 263 Cal.App.2d 228, 234, 69 Cal.Rptr. 464;  Shasta Douglas Oil Co. v. Work, 212 Cal.App.2d 618, 625, 28 Cal.Rptr. 190.)

In reference to rule 403, Rules of Evidence, we find the following federal interpretations of its “unfair prejudice” provision.  “[I]f it [the questioned evidence] is importantly relevant to the issue on trial, it will not be excluded, although it almost inevitably will be prejudicial to the defendant.”  (Bayless v. United States (9th Cir.) 381 F.2d 67, 72.)  “While the testimony may very likely have worked to prejudice the appellant, it did so because the evidence was damning, not because its introduction was error.”  (United States v. Cirillo (2d Cir.) 468 F.2d 1233, 1240.)  “Of course, ‘unfair prejudice’ as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party.   Virtually all evidence is prejudicial or it isn't material.   The prejudice must be ‘unfair.’ ”  (Dollar v. Long Mfg., N.C. Co., Inc. (5th Cir.) 561 F.2d 613, 618.)  “Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by exclusion despite its relevance.   It is not designed to permit the court to ‘even out’ the weight of the evidence, ․ or to make a contest where there is little or none.”  (United States v. McRae (5th Cir.) 593 F.2d 700, 707.)  “The prejudice resulting to defendants from the fact that introduction of the evidence was damaging to their case is, of course, not the kind of prejudice against which Fed.R.Evid. 403 protects defendants.”  (United States v. DeLillo (2d Cir.) 620 F.2d 939, 947, fn. 2.)

Such federal decisions will reasonably be encapsulated, as stated by Carter v. Hewitt (3d Cir.) 617 F.2d 961, 972:  “It [rule 403] does not offer protection against evidence that is merely prejudicial, in the sense of being detrimental to a party's case.   Rather, the rule only protects against evidence that is unfairly prejudicial.   Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’  ․ It is unfairly prejudicial if it ‘appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish,’ or otherwise ‘may cause a jury to base its decision on something other than the established propositions in the case.’ ”

 We accordingly hold that evidence is unduly, or unfairly, prejudicial, within the meaning of Evidence Code section 352, only if it has an undue tendency to suggest or bring about a decision on an improper basis, i.e., other than on the merits, or the issues before the court or jury.

II. Defendant also contends that:  “The exclusion of the offered testimony of plaintiff's expert witness constituted prejudicial error.”

The expert witness gave, or attempted to give, evidence in relation to a certain streetcar that he had examined.   An objection to such testimony was sustained on grounds as follows:  “There is no testimony here that what the doctor measured is the same measurements that prevail on the streetcar in question.   There is no testimony as to the model of the streetcar in question.   There is no testimony that the style of the streetcar he measured is identical to the streetcar in question.   The testimony is that the streetcar is done in different styles.   He took one that was comparable.   That is an insufficient foundation.”

In matters such as this the trial judge's discretion “is very broad.”   (Witkin, Cal.Evidence (2d ed. 1966) § 1175, p. 1088.)   We need not rule upon the instant contention.   Upon reversal and retrial, Tracy will again be afforded an opportunity to qualify such a witness and to lay a proper foundation for his testimony.

III. The final contention of Tracy's appeal follows:  “The court committed prejudicial error in allowing the admission of defendant doctor's medical report which, without proper foundation, was inadmissible hearsay.”

Tracy insists that the complained of report, of a doctor who did not testify, was not relied upon by doctors who did, and that it was therefore inadmissible hearsay.   The defendant city, on the other hand, points out that it was read and reviewed by a doctor witness.   Here also, we are of the opinion that should the problem recur at the next trial, its resolution would best be confided to the sound discretion of the trial court.

The judgment is reversed.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.

Copied to clipboard