DocketNumber: Civ. No. 29755
Citation Numbers: 249 Cal. App. 2d 593
Judges: Fox
Filed Date: 3/20/1967
Status: Precedential
Modified Date: 1/12/2022
This action grows out of an automobile accident. Verdict and judgment went for defendant. Plaintiffs have appealed.
The basic question on this appeal is whether the court prejudicially erred in admitting evidence as to the manner in which the accident occurred that was outside defendant’s pretrial statement as to how it occurred.
The accident occurred in the late afternoon of May 22, 1961, on Vanowen Street, 195 feet east of the intersection of
In the joint pretrial statement defendant did not state the portion of the highway on which she was traveling, merely that she was " eastbound on Yanowen Street.” In her separate pretrial statement defendant stated, under the heading Factual Issues Remaining in Dispute: “ (a) The manner in which the accident occurred: Defendants
Under the heading Legal Issues Remaining in Dispute, defendant stated: “ (a) Negligence of defendant Viola Warner, (b) Negligence of plaintiff Elva Frasca. ”
In order to evaluate the problem at hand it is important to have a precise statement of the testimony of the operators of the two cars as to how the accident occurred. Plaintiff testified that she was traveling east on Vanowen and stopped at its intersection with Yan Alden because the traffic light was red. She “was in the lane nearest to the parked cars.”
A police officer for the City of Los Angeles testified that Vanowen Street was 60 feet wide with a white line in the center; that the highway for both east and west travel was 30 feet. The officer was at the scene soon after the accident and placed the point of impact between plaintiff’s and defendant’s cars at 23 feet north of the south curb of Vanowen Street. He based his opinion as to the point of impact on the skid marks of the defendant’s car, and the presence of debris and glass from both cars.
Plaintiff’s testimony was that at the time of the impact she was driving in the lane (unmarked) next to the parked cars, and that no part of her car was in the lane to her left. She was asked this question on cross-examination: “Did you swerve your car to the left just before the accident ? A. Absolutely not. ’ ’
Defendant testified that she stopped for the red light signal at the intersection of Vanowen and Van Alden in the lane next to the center line. She traveled in this same lane at a speed of 20 to 25 miles per hour until, as a result of her son’s outcry, she observed plaintiff’s car about a car’s length away. Defendant slammed on her brakes and turned her wheels slightly to the left. She did not, however, cross over the center line of the roadway. Defendant’s front right fender came in contact with plaintiff’s rear left fender. It was a glancing blow. We then have these questions and answers:
“ Q. Will you state at the moment of this collision whether or not any part of Mrs. Frasca’s [plaintiff] vehicle was occupying the lane or a portion of it that your car was in ? A. I would say yes.
*596 “Q. And at the moment of the collision can you tell us in what direction Mrs. Frasca’s vehicle was pointed? A. Northeast.
“Q. And at the moment of the collision in what direction was your vehicle pointed ? A. Bast, slightly north. ’ ’
Mrs. Frasca’s car was suddenly in front of defendant going very slow. “Plaintiff gave no signal” but she did not make a sudden stop.
After defendant rested, plaintiff made motion that the fact of the northeast direction of this automobile, any other matters in relation to any type of lane change or attempted lane change by defendant be stricken from the record as not in conformity with the written interrogatories and with the pretrial factual contentions of defendant.”
Reduced to its simplest terms, it is plaintiffs’ position that, in view of defendant’s pretrial statement as to the factual issues remaining in dispute, defendant could only establish contributory negligence on the part of plaintiff by evidence that, “while driving in the southerly traffic lane, she [plaintiff] did in fact suddenly stop without sufficient reason or signal when defendant was behind her. ’ ’
It is important that we bear in mind the precise factual issue defendant stated remained in dispute: It is stated in this language: " The Manner in Which the Accident Occurred.” (Underscoring in the record.) Then follows a statement of what “Defendants contend” the evidence would show as to the manner in which the accident occurred. It appears that in some details defendant was in error. But it does identify the accident, its location, the parties involved; the fact a third party was attempting to park his car, that this interrupted plaintiff’s forward progress, that defendant, in an effort to avoid hitting plaintiff’s car applied her brakes and swerved her car to the left but was unable to prevent the right front of her vehicle hitting the left rear of plaintiff’s vehicle a glancing blow. This leaves some uncertainty as to the lane of traffic (unmarked) in which defendant was traveling, and what plaintiff did when she found her forward progress interrupted by the car that was backing into the parking space. As to the lane in which defendant was traveling, it is true her counsel stated in the first and second lines of defend
Thus, the testimony that, at the moment of the collision, plaintiff’s car was occupying “the lane or a portion of it” in which defendant’s car was located, and that plaintiff’s car was pointed in a northeast direction, and that the impact of the ears was 23 feet north of the south line of Vanowen Street (which placed it at least in part in defendant’s lane of travel) was important and relevant in determining the movements of plaintiff’s car and the manner in which the accident occurred.
In denying plaintiff’s motion to strike the testimony relative to the “northeast” direction of plaintiff’s car, and “any other matters in relation to any type of lane change or attempted lane change,” as not in conformity with the pretrial factual contentions of defendant, the court made these pertinent observations:
“The Court: Well, gentlemen, I cannot buy the argument that the trial court is put in a straitjacket by the pretrial*598 statement and its hands are tied, cannot instruct on issues that the evidence clearly demonstrates exist.
“Now, we say that the pretrial is designed to achieve justice and the truth, and yet, if that is true, then putting the trial court in a strait jacket is going to obstruct justice and the truth rather than to achieve it. ’ ’
The philosophy underlying the trial court’s rulings on the matters at bench is in harmony with the principles announced by the federal courts which have had extensive experience in dealing with pretrial orders and statements. (Century Refining Co. v. Hall, 316 F.2d 15; Clark v. Pennsylvania R.R. Co., 328 F.2d 591.) In Century Refining Co. v. Hall (pp. 19-20) the court stated: “But, while the pre-trial order should measure the dimensions of a lawsuit and govern its course in the absence of some good reason for departure, this does not mean that the order should not be liberally construed to embrace all of the legal and factual theories inherent in the issues defined therein. Any other construction of the pre-trial order would tend to unduly constrict the trial of the case and defeat the central and salutary purpose of the Federal Buies of Civil Procedure to insure the trial of every lawsuit on its merits. . . . and not to defeat it on a technicality.” In Clark the court stated at page 594: “. . . it is a fundamental principle of pre-trial that this procedure be flexible, with' power reserved to the trial judge to amend the order or permit a departure from strict adherence to the pre-trial statement of either party, when the interests of justice make such a course desirable.” The decisions of our own courts are not contrary to these principles. In Atkins v. Atkins, 177 Cal.App.2d 207 [2 Cal.Rptr. 104], the court stated: “We do not believe that it was intended that the pretrial order should do away with the power of the trial court to permit amendments to conform to the proof. Justice may sometimes require that the effect of a pretrial order be not so restrictive even when the order is not modified.” (P. 211.) This statement was quoted in Rocky Mountain Export Co. v. Colquitt, 179 Cal.App.2d 204, 206 [3 Cal.Rptr. 512] ; Vesci v. Ingrim, 190 Cal.App.2d 419, 424 [11 Cal.Rptr. 830], and Texaco, Inc. v. Robinson, 209 Cal.App.2d 450, 452 [25 Cal.Rptr. 923], In Mays v. Disneyland, Inc., 213 Cal.App.2d 297 [28 Cal.Rptr. 689], the court commented: “The purpose of pretrial is to expedite the proceedings and to facilitate the correct determination of the issues.” (P. 300.)
To have granted plaintiff’s motion to strike the evidence in
Following the denial of plaintiffs’ motions to strike or to advise the jury that contributory negligence was not an issue, and for a directed verdict plaintiffs asserted surprise
In view of our conclusions it is unnecessary to discuss other points that counsel have debated.
The judgment is affirmed.
Jefferson, Acting P. J., and Kingsley, J., concurred.
A petition for a rehearing was denied April 6, 1967, and appellants’ petition for a hearing by the Supreme Court was denied May 17, 1967.
Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairman of the Judicial Council.
There was, however, a center line separating east and west traffic.
Defendants other than Viola 0. Warner were dismissed at trial.
This lane is referred to as the inside lane and the one nearest the center line as the outside lane though not separated by any line.
No objection was made to this testimony at the time it was offered.
Plaintiffs’ counsel reasonably could have expected that an effort would be made (and might succeed) to show that plaintiffs’ car was at least partially in the lane of traffic north of the one where she had been driving because "the police report had been examined” by them and it indicated the impact was within the traffic lane nearest the center line.