JOHN S. DAGGETT, Respondent; PAUL R. SMITH et al., Plaintiffs and Appellants, v. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY (a Corporation) et al., Defendants and Appellants.
L. A. No. 24392
In Bank
June 21, 1957.
655
Melvin M. Belli, William F. Reed, Edwin M. Rosendahl, Fitz-Gerald Ames, Sr., Lou Ashe, James Boccardo, David Casey, Ben C. Cohen, Robert Ford, Downey A. Grosenbaugh, Holt, Macomber & Graham, Leland V. Lazarus, Raoul Magana, Jack G. McBride, John W. McInnis, Herbert Resner and Ryan & Ryan for Respondent.
Peter C. Morris, Martin B. Berman, William P. Camusi, John Carter, S. M. Dana, Robert F. Diekman, John M. Ennis, Leo Fried, Myron L. Garon, Ned Good, Jerry Giesler, Irving H. Green, Vernon Humber, Hirson & Horn, John R. Inderrieden, Danny R. Jones, Elmer Low, Paul Madden, Mahedy & Schall, Munnell, Shelandor & Mullendore, Denver C. Peckinpah, Samuel B. Picone, Pollock & Pollock, Theodore W. Rosenak, Samuel A. Rosenthal, Harriet Ross, Edgar Simon, Eugene E. Sax, Edward Spraker, John Moran and Jesse E. Nichols as Amici Curiae on behalf of Respondent.
Neither the negligence of defendants, nor the contributory negligence of Paula Smith Daggett, are issues on this appeal. The only two assignments of error with respect to the evidence relate to the examination of defendant railway‘s employees called under
The accident occurred at approximately 11:18 a. m. on June 25, 1954. It was a clear day. Mrs. Daggett, who was 24 years of age and eight months pregnant, was driving in a westerly direction on Plaza Street, Solana Beach, accompanied by her two minor children, aged 3 years and 10 months, respectively. Defendant‘s train, which was traveling in a southerly direction at a speed of between 86 and 90 miles an hour crossed the intersection of Plaza Street on its railroad tracks at the same time as Mrs. Daggett‘s automobile which was estimated to be traveling at a speed of from 10 to 15 miles per hour. Mrs. Daggett and the two minor children were killed in the accident. On the north side of Plaza Street was a lumber compаny building about 75 feet from the crossing; on the same side of Plaza Street was a railroad siding on which stood a freight car about 100 feet from the crossing. Both the building and the freight car were on Mrs. Daggett‘s right (the direction from which the train approached the crossing) as she drove westerly on Plaza Street toward the railroad crossing. On the northeast corner (on Mrs. Daggett‘s right) of the intersection of the tracks and Plaza Street was an automatic wigwag signal located 12 feet 9 inches above the ground; on the southwest corner of the crossing was a standard crossarm. Running parallel to, and a very short distance from, defеndant‘s railroad tracks is the Pacific Coast Highway which intersects Plaza Street after it crosses the tracks. At this intersection there is a traffic
Glenn H. Benton, a defendant and the motorman who was operating the train at the time of the accident, was the first witness called by plaintiffs under
The second witness called by plaintiffs was William Price, signal engineer for the defendant railway company. Mr. Price, who qualified as an expert witness, and who testified under
Defendants contend that the court committed prejudicial error in admitting evidence of changes made subsequent to the time of the accident. Plaintiffs argue that the evidence was not admitted for the purpose of showing changed conditions but to impeach the witnesses called by them under
It is the general rule in this state that evidence of precautions taken and repairs made after the happening of
This court has held, however, that “Although evidence of the character here in question may not be admissible to prove negligence at the time of the accident, it is proper to impeach the testimony of a witness. (Inyo Chemical Co. v. City of Los Angeles, supra [5 Cal.2d 525 (55 P.2d 850)].) In the case at bar, the record discloses that prior to the testimony of the witness Bromfield with relation to the cessation of waxing the floor, said witness had testified that he had ‘looked at the floor (immediately after the accident) and-did not notice anything unusual about the floor,’ and the defendants at all times maintained that there was nothing wrong with the floor. The evidence of his having later ordered that the floor not be waxed tended to impeach that testimony by showing that he had changed his mind with reference to there being nothing wrong with the floor, and was admissible for that purpose.” (Hatfield v. Levy Brothers, 18 Cal.2d 798, 809, 810 [117 P.2d 841]; see also the following cases holding that evidence of changed conditions is admissible by way of impeachment: Gorman v. County of Sacramento, 92 Cal. App. 656, 666 [268 P. 1083]; Uttley v. City of Santa Ana, 136 Cal.App. 23, 28 [28 P.2d 377]; Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525, 543 [55 P.2d 850].)
It is argued by defendants, however, that such evidence is permissible only to impeach evidence produced by the other
Mr. Wigmore points out (3d ed., III, § 916, p. 431) that “If there is any situation in which any semblance of reason disappears for the application of the rule against impeaching one‘s own witness, it is when the opposing party is himself called by the first party, and is sought to be compelled to disclose under oath that truth which he knows but is naturally unwilling to make known. To say that the first party guarantees the opponent‘s credibility (ante, § 898) is to mock him with a false formula; he hopes that the opponent will speak truly, but he equally perceives the possibilities of the contrary, and he no more guarantees the other‘s credibility than he guarantees the truth of the other‘s case and the falsity of his own. To say, furthermore, that the first party, if he could impeach at will, holds the means of improperly coercing the other (ante, § 899) is to proceed upon a singular interpretation of human nature and experience, and to attribute a power which the former may perhaps wish that he had but certainly cannot be clothed with by this or any other rule. There is therefore no reason why the rule should apply at all.” (Emphasis that of the author.)
This court held in Smellie v. Southern Pac. Co., 212 Cal. 540, 556 [299 P. 529], that a witness called under
It has been heretofore held that the party calling a witness under
It has been held that the limited cross-examination rule does not prevent questions on cross-examination as to matters affecting the accuracy or credibility of the witness (Cooper v. National Motor Bearing Co., 136 Cal.App.2d 229, 232 [288 P.2d 581]; Voll v. Hollis, 60 Cal. 569; People v. Alcalde, 24 Cal.2d 177, 184 [148 P.2d 627]; People v. Showers, 90 Cal.App.2d 248, 254 [202 P.2d 814]; Luis v. Cavin, 88 Cal.App.2d 107, 114 [198 P.2d 563]; People v. Tallman, 27 Cal.2d 209 [163 P.2d 857]). In the Tallman case, this court said (at page 214): “A wide latitude is permitted in the
It is obvious that the adverse party, or witness, called under
Defendants next argue the applicability of the latter part of
There appears to be no sound reason why evidence of the type under consideration since admissible for impeaсhment purposes (Hatfield v. Levy Brothers, 18 Cal.2d 798 [117 P.2d 841]; Inyo Chemical Co. v. City of Los Angeles, 5 Cal.2d 525 [55 P.2d 850]), should not be admissible for the purpose of impeaching a witness called under
Defendants contend that the award of damages of $50,000 to plaintiff John S. Daggett for the loss of his two minor children was so excessive that it must have been given under the influence of passion and prejudice. Defendants concede that each case is to be determined upon its own facts (Christy v. Ulrich, 113 Cal.App. 338 [298 P. 135]) but argue that the factors to be considered in an award of damagеs to a parent for the death of his children are the loss of comfort and society to the parent of the children and the loss of the subsequent protection of the parent by the children, “mitigated, however, as harsh as such a rule may seem, by the pecuniary gain of the parent in the elimination of the expense of rearing the children.” The jury was so instructed and no contention is made that the jury was not properly instructed as to the factors involved in an action of the type under consideration.
While a reviewing court, in passing upon the question involved here, may consider amounts awarded in similar сases (Osrowitz v. Market Investment Co., 40 Cal. App.2d 179, 185 [104 P.2d 681]; Power v. California St. Cable R.R. Co., 52 Cal.App.2d 289, 292 [126 P.2d 4]), in the final analysis the question in each case must be determined from its own peculiar facts and circumstances (Kirshbaum v. McCarthy, 5 Cal.2d 191 [54 P.2d 8]) and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is ordinarily allowed in such cases. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages. (Tyson v. Romey, 88 Cal.App.2d 752, 757 [199 P.2d 721].)
Taking into consideration the facts and circumstances presented by the case under consideration we cannot hold, as a
Insofar as the appeal of Olga Smith and Paul R. Smith, parents of Paula Smith Daggett, is concerned, we cannot say, as a matter of law, that there is no evidence to support the implied finding of the jury that the deceased Paula Smith Daggett was guilty of contributory negligencе.
The judgment is affirmed.
Gibson, C. J., Shenk, J., and Traynor, J., concurred.
SCHAUER, J., Dissenting. - It is my view that it was prejudicial error to bring before the jury the fact that after the accident defendant railroad company reduced its speed limitation from 90 to 50 miles an hour at the intersection in Solano Beach where the railroad tracks crossed Plaza Street and where the accident occurred. The attempt to defend such an error as being merely the presentation of impeaching evidence appears to me to be without support in the record. To the contrary, the record affirmatively shows that at no time did the witness, Benton, testify that the limitation for the crossing remаined at 90 miles an hour at the time of trial. His testimony was clearly to the effect that the general limitation for the entire fourth district-i.e., the area from Fullerton to San Diego-was 90 miles both at the time of the accident and at the time of trial, and he had further made clear that there were other limitations calling for lesser speeds at various smaller areas within the district. Moreover, any confusion as to speeds, times, and districts or areas appears from the record to have been invited and brought about by counsel for plaintiffs, who then seized upon such alleged confusion as an excuse to get before the jury otherwise inadmissible evidence of a change in the speed limitation after the accident. The following excerpts from the examination of Benton by counsel for plaintiffs, who had called him as a witness under
“Q. [By counsel for plaintiff] What was [at the time of the accident] that crossing posted for as far as the railroad was concerned? A. 90 miles an hour. . . .
From the above-quoted portion of the record it is apparent that counsel for plaintiffs, by swinging back and forth between past tense and present tense, and by discussing speed restrictions without specific indication of whether he referred to restrictions within entire railroad districts or to restrictions at a smaller area within a district (such as at the Plaza Street crossing here involved), succeeded in confusing not only Benton, the witness, but also the court itself. Counsel then seized upon the confusion which he himself had engendered, to not only bring before the jury the fact that the restriction at the Plaza Street crossing hаd been changed to 50 miles, but to emphasize that the change had taken place subsequent to the accident. The admission of such improper evidence could not, and did not, tend to impeach the witness, who at no time had testified that the Plaza Street intersection speed had remained at 90 miles an hour up to the time of trial; on the contrary, the witness had clearly stated that the overall restriction in the fourth district (i.e., from
As stated in the majority opinion, the jury impliedly found that the deceased mother of the children, who was driving the automobile in which they were riding when they met their death, was guilty of contributory negligence. That automobile was estimated to have been traveling at a speed of from 10 to 15 miles an hour at the Plaza Street intersection when the accident ocсurred. The accident took place shortly before midday, and the weather was clear. Four disinterested witnesses testified that the automatic wigwag was in operation prior to and at the time of the collision, and that the train was whistling as it approached. The engineer, Benton, testified that the automatic bell on the locomotive had been ringing continuously from Oceanside (some 15 miles north of Solano Beach), and that an emergency brake application was made some 100 feet prior to the point of impact in response to the fireman‘s warning of the approaching autоmobile. The speed tape sealed within the locomotive placed its speed at between 85 and 86 miles an hour at the time the emergency brake application was made. Both the engineer and the fireman testified further that the train air horn was blown for the Plaza Street crossing from a point at least 1,000 feet north of the crossing. Further, plaintiff Daggett testified that both he and his deceased wife had become familiar with the crossing prior to the accident, as well as the operation of the trains and protective devices.
In view of the above related evidence, the prejudicial effect of the erroneous admission of testimony concerning the reduction in the speed limitation at the subject crossing following the accident appears clear. I would reverse the judgment in favor of plaintiff John S. Daggett.
Spence, J., and McComb, J., concurred.
The petition of defendants and appellants for a rehearing was denied July 16, 1957. Schauer, J., Spence, J., and McComb, J., were of the opinion that the petition should be granted.