Stuart v. Dotts

WARD, J.

Plaintiff in a personal injury action appeals from a judgment after verdict by a jury in favor of defendant. The main point on appeal is whether certain testimony which defendant refers to as “opinion” evidence is admissible. Defendant claims that the admission of the evidence was not harmful and could have had no prejudicial effect upon the outcome of the case. The position of plaintiff is that the opinion of an expert cannot be based upon hearsay testimony, and that the evidence was prejudicial.

Defendant pictures the scene of the accident under conditions of darkness as follows: ‘1 Shattuek Avenue runs north and south and has street car tracks along its course. Lincoln runs east and west; but it dead-ends at Shattuek, coming into Shattuek from the west. The crosswalk in question is the prolongation of the north sidewalk of Lincoln across Shat-tuck. It is an unmarked crosswalk.”

The record shows that Lawrence Munn, employed in automotive service near the scene of the accident, was called as a witness for plaintiff and testified that he saw her enter the crosswalk and proceed “probably eight or ten feet”; that he continued his work and “took my eyes away” from her and “finished servicing the car . . . Then I heard the thud . . . and I seen something laying across the street . . . She was laying about half—the lower part of her body was underneath the car and I would say about the center of her back was about two feet back of the front wheel. Q. And the lower part of her body was under the car? And the upper part of her body was out from under it? A. Yes.” The witness referred to a parked car other than defendant’s, north of the crosswalk.

Defendant was called under Code of Civil Procedure, section 2055. She testified that on the evening of November 1, 1946, she drove her car in a northerly direction on Shattuek Avenue approaching Lincoln Street. It was fair and dry, and just about twilight. Her car lights were on. She stated that she did not see plaintiff until after she brought her car to a stop. She had been going “15, 15 to 18” miles per hour “following the 'traffic . . . Outside the line of parked cars ... at least eight feet from the curb. ’ ’ Defendant also testified that

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the point of impact was the side of the right front fender. It is admitted that defendant’s driver’s license requires her to wear eyeglasses “at all times while driving.” She was not wearing glasses at the time of the accident but in that regard testified: “I find the reflection of light is bad at night, so I thought the benefit of the glasses was quite offset by that.” The evidence also shows that the-windshield was dirty. There is evidence upon which a finding