187 Cal. App. 2d 155 | Cal. Ct. App. | 1960
Plaintiff sued Lee, Miller and defendants Bloom for personal injuries arising out of a rear-end collision. The trial court found Lee was negligent in the operation of a
Appellant’s contentions that the lower court’s finding defendants Bloom “were not negligent in the maintenance and operation of the 1955 Pontiac automobile” is not supported by the evidence and is contrary to the law, and that the findings are unsupported by the evidence and the judgment is against the law, are predicated upon partisan evidence and a factual argument wherein he urges this court to reweigh the evidence and draw inferences contrary to those drawn by the trial judge. Neither contention is valid, either on the facts established by the evidence or under the well-defined rules on appeal — that the credibility of the witnesses, the weight to be accorded the evidence and the determination of factual conflicts and which of two or more inferences should be drawn from the evidence, are all matters within the exclusive province of the trial court (Kuhn v. Gottfried, 103 Cal.App.2d 80 [229 P.2d 137]); all conflicts in the evidence must be resolved in favor of the result reached below (Berniker v. Berniker, 30 Cal.2d 439 [182 P.2d 557]); all reasonable inferences are indulged in favor of the findings and judgment (Burke v. Chrostowski, 46 Cal.2d 444 [296 P.2d 545] ; McCarthy v. Tally, 46 Cal.2d 577 [297 P.2d 981]) and the evidence must be viewed in the light most favorable to the respondent (Primm v. Primm, 46 Cal.2d 690 [299 P.2d 231] ; Grainger v. Antoyan, 48 Cal.2d 805 [313 P.2d 848] ; Crawford v. Southern Pacific Co., 3 Cal.2d 427 [45 P.2d 183]) ; and when a finding is attacked on the ground there is lack of substantial evidence to sustain it, “the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact” (Primm v. Primm, 46 Cal.2d 690, 693 [299 P.2d 231]; Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689]).
On the trial all parties involved testified, as did the police officer who arrived at the scene after the accident; received in evidence were numerous photographs, a diagram, official documents of the Department of Motor Vehicles, a list of medical bills and a prior statement given by defendant Lee; and the trial judge personally viewed the damage to defend
At the trial (and now before us) plaintiff contended that defendant Bloom’s Pontiac, as the result of following too closely behind the Lee Studebaker and going 35 to 40 miles per hour, veered to the left and struck the rear of the Lee Studebaker which was stopping or almost stopped ahead of him, thereby pushing the Studebaker into the rear of the plaintiff’s stopped vehicle ahead, resulting in a whiplash injury to him. Defendant Lee, called by plaintiff under section 2055, Code of Civil Procedure, described the weather as “exceptionally foggy,” and testified that as he stopped behind plaintiff’s Chrysler, defendant Bloom came “skiing” up and hit the Studebaker from behind, pushing it into the rear of plaintiff’s car
In finding Bloom not negligent, the trial court unquestionably believed the defense testimony of what occurred, rejecting plaintiff’s version of the accident. In determining the credibility of the witnesses it undoubtedly was aided by the photographs showing the nature and extent of damage to the various vehicles, and the court’s personal inspection of defendant’s car. And obviously, it viewed with concern plaintiff’s testimony that — prior to the impact he looked through his rear-vision mirror and saw defendant approaching from the rear behind the Studebaker, half on and half off the travelled right portion of the highway, going 35 to 40 miles per hour, veer to the left and crash into the rear of the Studebaker, causing it to strike his ear- — inasmuch as there was a very heavy fog, visibility was nil (around 15 feet), admittedly defendant’s car was out of his straight line of vision, Lee’s Studebaker was between defendant’s car and his own, and plaintiff saw all of this from his rear-view mirror. Too, it is reasonable that the trial judge rejected Lee’s testimony that he had stopped behind plaintiff, and defendant struck him (Lee) pushing his Studebaker into plaintiff’s Chrysler, particularly in view of Lee’s impeachment by his previous statement (Exhibit C) and Prentiss’ testimony that Lee had long prior to
Defendant Bloom was driving his Pontiac 10-15-20 yards (30-60 feet) behind the Lee Studebaker going approximately 10 to 15 miles an hour; it was very foggy, visibility was “nil,” and although he could and did see the Studebaker directly in front of him, he was unable to see the plaintiff’s car ahead of the Studebaker. Without warning to Bloom the Studebaker ran into the rear of plaintiff’s Chrysler ahead; he heard the crash and then 12 to 15 feet behind the Lee Studebaker, he saw the impact between the two cars cause the rear of the Studebaker to thrust forward up in the air; defendant immediately applied his brakes “real hard” stopping 5 or 6 feet behind the Studebaker; the rear of the Studebaker, in the air with its rear wheels 2% feet off the ground, bounced back and as it came down to the ground, the rear bumper of the Studebaker grazed the top front of the Pontiac’s hood and then fell off of defendant’s car onto the ground. The Studebaker’s only contact with the Pontiac came from above, hitting the top of the grille of the hood of the latter making a light dent in the chrome strip and a mark on the bumper. The damage was minor to both the rear of the Studebaker which had only a “small dent” underneath its bumper, and the front of defendant’s Pontiac; the damage was substantial to the front end of Lee’s Studebaker and the rear of plaintiff’s Chrysler.
Forty minutes after the accident Officer Finch arrived at the scene. He determined two points of impact and took photographs showing the nature and extent of the damage to all three vehicles, in particular to the rear of plaintiff’s Chrysler (Exhibit 5) and to the front of Lee’s Studebaker (Exhibit 6).
The photographs showing substantial damage to the rear of plaintiff’s Chrysler (Exhibit 5); substantial damage to the front of Lee’s Studebaker and slight damage to its rear (Exhibit B) and only minor damage to the front of defendant’s Pontiac (Exhibit A), bespeak the cause of the contact between Lee’s Studebaker and defendant’s Pontiac and how it occurred —that defendant did not run into the rear of the Studebaker but that the impact by the Studebaker came from above; any contact between Lee’s Studebaker and the defendant’s Pontiac could not have caused the Studebaker to strike the plaintiff’s Chrysler with enough force to cause the damage shown to his car; and that the damage to the rear of plaintiff’s Chrysler was due entirely to the impact caused when Lee without any contact from defendant’s Pontiac, ran into plaintiff’s rear without applying his brakes.
The record clearly shows that in the trial court the plaintiff failed to sustain his burden of proving by a preponderance of evidence that defendant Bloom was negligent (Palmer v. Crafts, 16 Cal.App.2d 370 [60 P.2d 533]; Puckhaber v. Southern Pacific Co., 132 Cal. 363 [64 P. 480] ; Delk v. Mobilhomes, Inc., 118 Cal.App.2d 529 [258 P.2d 75] ; Rufo v. N.B.C. National Broadcasting Co., 166 Cal.App.2d 714 [334 P.2d 16] ; Oldenburg v. Sears Roebuck & Co., 152 Cal.App.2d 733 [314 P.2d 33]), and we find nothing therein to justify a reversal of the lower court’s factual determination.
In finding defendants were not negligent, the trial court impliedly found that there was no collision whereby defendant ran into the rear of the Studebaker as contended by plaintiff, and that the contact between the rear of Lee’s Studebaker and the front of defendant’s Pontiac came from above when from the force of the Studebaker’s prior impact with plaintiff’s Chrysler, the rear of the Studebaker bounced up and settled back down on the ground. Nevertheless, predicating his argument on the assumption there was in fact a
Under his Point II appellant urges “the findings are not supported by the evidence,” and relating certain partisan evidence, argues the insubstantial nature thereof. We make no further comment thereon for his failure to point up the specific findings about which he complains.
Referring to the well-defined rule that findings must be made on all material issues, appellant claims the trial court erred in failing to find whether defendants “recklessly” and “carelessly” operated their Pontiac and whether defendants “proximately contributed in any degree to plaintiff’s injuries” (A.O.B., p. 27). He argues that he alleged in his complaint
The record discloses that the findings of fact now under attack were actually prepared and presented to the trial court by appellant, thus foreclosing consideration of the merits of his claim that they do not contain findings on all material issues. {Pacific Venture Corp. v. Huey, 15 Cal.2d 711 [104 P.2d 641]; Roberts v. Karr, 178 Cal.App.2d 535 [3 Cal.Rptr.98].) “An attorney who prepares inadequate or erroneous findings invites error on the part of the court, and if error is unwittingly committed by the court the responsibility rests on the attorney and his client. It is settled that where findings are prepared by counsel designated by the court and it appears that the attorney was at liberty to use his own judgment as to the text of findings, no claim of insufficiency of the findings will be entertained on appeal from the judgment. [citations] . . . From the fact that plaintiff’s attorney prepared the findings it follows he requested no findings upon the issues as to which he contends the findings were deficient. Therefore, plaintiff must be held to have waived findings on those issues.” {Johnson v. Rich, 150 Cal.App.2d 740, 747 [310 P.2d 980].) However, the point is entirely without merit for the finding that defendants were not negligent is a sufficient finding of the ultimate fact of the absence of negligence on the part of defendants to relieve them from liability. {Strauch v. Bieloh, 12 Cal.App.2d 278 [60 P.2d 582].)
Nor does it appear from the record that any objection to the findings was made to the trial court — either at the time they were presented and signed or on plaintiff’s motion for new trial. Having prepared them, plaintiff must have explored the matter he now raises, and having made no claim to the court below that his findings did not cover all of the issues, the point was thereby waived. {Kalmus v. Cedars of Lebanon Hospital, 132 Cal.App.2d 243 [281 P.2d 872].)
Lacking in merit also is appellant’s present contention that the lower court erred in admitting Exhibit C in evidence instead of for the limited purpose of impeachment. Again we find a failure to make timely objection.
Exhibit C consists of a written statement of three pages, each admittedly signed by defendant Lee prior to trial. Appellant now claims it was hearsay. Plaintiff called defendant Lee, who had defaulted, as a witness under section 2055; he
Although the record shows the use of a “hearsay objection” after Exhibit 0 had been admitted in evidence the last time, a careful reading of the entire proceeding reveals that it was made only in connection with an unsigned statement of the witness Lee taken down a week after Exhibit C was signed, by a reporter who was not then present at the trial, when counsel sought to also use this to impeach the witness Lee.
Appellant’s claim of error that “the information contained in the foundation questions being incorrect, there was no proper foundation for the use of said document (Exhibit C) or its receipt into evidence” (A.O.B., p. 32) is unclear, but we assume he is basing the same on the conflict of the evidence concerning where Lee was at the time he signed the statement. We find no substance to his claim — first because he raises the point for the first time on appeal and second, because Lee admitted he signed the document.
At the trial, counsel’s objection that “no foundation” had been laid was directed specifically to the contention “that he (Lee) did not read it.” Actually Lee testified he read part of the statement; later, that he glanced at it. When the trial judge reminded plaintiff’s counsel of this and in any event, it went to the document’s weight, not to its admissibility, counsel said “all right” and it was admitted in evidence. Appellant now asserts that because Lee testified he signed the same at his place of work, and Prentiss said Lee signed it at his home, an inconsistency arose rendering the foundation improper. The argument is without merit for Lee himself admitted, without any question, that he signed the statement (Exhibit C) on each of its three pages and wrote in his own
Appellant’s last point goes to the failure of the trial judge to permit Lee to explain his answers relative to Exhibit C. Other than brief references to various pages and lines of the transcript, appellant has neglected first, to point up his specific complaints; second, to set forth what if anything Lee wished to explain; and third, to show either error or prejudice. (Mullanix v. Basich, 67 Cal.App.2d 675 [155 P.2d 130] ; Sartina v. General Petroleum Corp., 41 Cal.App.2d 74 [106 P.2d 60].)
After the admission of Exhibit C, counsel for plaintiff on redirect, in an effort to rehabilitate the witness Lee, taking the statement (Exhibit C) sentence by sentence and repeating the same, asked him if each was correct; he answered both in the affirmative and in the negative. Counsel then asked, “Then in a matter of two or three seconds I was hit from the rear by a third car,” . . . “Is that correct?” Lee answered: “Yes, I think. I am going to tell you-,” whereupon the court admonished him just to answer the question. Lee answered the question, “Yes”; he did not seek permission to explain, only started to volunteer information outside of the question ; and plaintiff’s counsel neither complained nor asked the court to permit him to speak further. In fact counsel directly proceeded to another question.
Again counsel asked Lee, “Is this true: ‘The first impact, when I hit the car ahead of me, was pretty hard. The first impact, when I hit the car in front of me’?” and Lee answered, “Do you know — these statements — wait a minute, wait a minute, I have to explain myself, Your Honor.” The court instructed him to answer the question, which Lee did with “No, No.” After the court admonished the witness to confine his answer to the question, Lee wanted to volunteer further information which the court told him he could not then do. Plaintiff’s counsel, without complaint or request to permit the witness an explanation, proceeded to his next question and the following colloquy occurred: Counsel, “Did you make this statement Mr. Lee: ‘ The first impact when I hit the car ahead of me.’ You were asked that question?” Mr. Lee: “Yes.” Counsel: “And what was your answer to that ques
The record, both before and after this on direct, cross and redirect examination, is replete with extended explanations of the witness concerning whether the statements were made, where, when, under what circumstances, the arrangements of the persons present, what he was doing at the time, whether the statements were true, and so on. Any claim that the witness Lee was denied the right to explain cannot be sustained by the lengthy examination of Mr. Lee and the ample opportunities he was afforded, and accepted, to explain Exhibit C.
For the foregoing reasons, the judgment is affirmed.
Wood, P. J., and Fourt, J., concurred.