Rideau v. Los Angeles Transit Lines

VALLÉE, J.

Appeal by defendants from an adverse judgment in an action for damages for personal injuries. Plaintiff Lewis W. Rideau will be referred to as “plaintiff.”

On January 8, 1952, about 11 a. m., plaintiff drove a small tow truck north on Main Street toward 23d Street in Los Angeles. The weather was clear and the street dry. Before reaching 23d Street he had driven for four or five blocks in the lane of traffic next to the center of Main Street, in which lane there were tracks of defendant Los Angeles Transit Lines. When he reached 23d Street he stopped in obedience to a traffic signal. About 8 or 10 seconds later and before the traffic signal changed from “Stop” to “Go” his truck was struck in the rear by one of the defendant Transit Lines’ northbound streetcars operated by defendant Adams. Plaintiff was severely injured, including an aggravation of a previous spondylolisthesis of the fifth lumbar vertebra, a sliding over of the vertebra.

Six weeks before the present accident, in December, 1951, plaintiff was involved in an accident with a Greyhound bus and had suffered injuries to his neck and upper back; the lower back was not injured.

Defendants claim the court erred in permitting a physician to testify that pains which plaintiff suffered in the lower back could be attributed to and caused by the streetcar. Plaintiff’s counsel asked the physician: “Then, in your opinion, Doctor, could the pains be attributed and caused by that second accident?” Defendants objected to the question as being too indefinite and vague. The question was reworded:

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“In your opinion, then, these low hack pains which we have mentioned of January, in view of the histories that you have first mention of them being, could you attribute them to this second accident, as being caused by the streetcar accident?” No objection was made to the revised question. The physician answered, “Very much so.” Having failed to object to the revised question, defendants waived any objection thereto and are estopped from raising it for the first time on appeal. (3 Cal.Jur.2d 609, § 143.)

The trial court refused to give an instruction, requested by defendants, in the language of section 544 of the Vehicle Code, together with an instruction that violation thereof, if found, would constitute negligence as a matter of law.