Lipman v. Ashburn

[618]

SHINN, P. J.

This is an action brought by a minor, through his guardian

ad litem,

to recover for injuries sustained when his motorcycle collided with a truck of Ashburn Bros. Heating Company driven by its agent Teubner. Verdict and judgment were for the defendants and plaintiff appeals.

The sufficiency of the evidence to justify the verdict is not questioned. The grounds of the appeal are: (1) The exclusion of expert testimony; (2) refusal to reopen the case for the purpose of receiving additional evidence, and (3) refusal of an instruction requested by plaintiff.

The collision occurred at the intersection of Edinburgh Avenue and Fourth Street in the city of Los Angeles. Plaintiff approached the intersection from the south; the truck approached it from the west. Traffic on Edinburgh was not controlled by a boulevard stop sign at Fourth Street but east and west traffic on Fourth Street was so controlled. Testimony was given by Teubner and another employee who was riding with him that the truck was brought to a stop and proceeded slowly through the intersection. Teubner testified that before he entered the intersection he looked both ways on Edinburgh and saw nothing; when the front of the truck was about the center of Edinburgh he saw the motorcycle about 75 feet south of the intersection; he applied his brakes immediately and stopped the truck within 8 or 9 feet, when it was struck by the motorcycle on the right side behind the cab. Plaintiff testified that when he was 100 feet from the intersection he saw the truck approaching from the west, assumed it would make the boulevard stop, observed it was not going to stop, speeded up his motorcycle to pass in front of the truck, realized this was not feasible, applied his brakes, endeavored to turn to the right with the truck but did not succeed. He had accelerated the motorcycle "to its full extent.” He had been going about 25 miles an hour and was going at least 40 miles an hour when he applied his brakes. Testimony was given by a police officer that the motorcycle skidded 65 feet up to the point of the collision.

After defendants' evidence was closed plaintiff produced, as a witness, Frank C. Lynch, a consulting engineer. Hypothetical facts were stated to the witness which he said were sufficient to enable him to form a scientific opinion as to the speed of the motorcycle. He was asked to state his opinion. An objection was interposed upon numerous grounds and was sustained. Defendants had offered no direct evidence as to the speed of the motorcycle although they had established the length of the skid marks. The only direct evidence as to the