Fisch v. Los Angeles Metropolitan Transit Authority

SHINN, P. J.

Plaintiff Adolph Fisch appeals from a judgment entered upon a verdict in favor of defendants in an

[539]

action for personal injuries. Plaintiff was struck by the automobile of one Barnes immediately after he alighted from defendants’bus and the action is based upon the claim that defendants were negligent in failing to so operate the bus as to afford plaintiff a safe means of exit. The answer of defendants denied negligence and pleaded the defense of contributory negligence. Although named as a defendant, Barnes was not served and could not be located.

At about 7 a.m., several blocks west of Fairfax Avenue, plaintiff boarded a bus going east on Santa Monica Boulevard. He had frequently used the bus on his way to religious services. He held a transfer for use on a bus going south on Fairfax. The bus he was on, driven by a Mr. Shaw, was to turn north on Fairfax. As it reached the intersection it was in the lane adjoining the center of the street. Plaintiff saw a bus headed south on Fairfax; he indicated to Shaw that he wanted to catch the bus; Shaw opened the door and plaintiff stepped out. He described the accident as follows: “He opened the door and I go down. He look—I look to the right side. I go down two steps. I look also to the right side. I get over from the bus, I look to the right, I see a car about four, about seven, eight feet. I see a car coming. I cannot—I cannot help—when I get down from the bus, the ear hit me the second.” Also, he testified: “I don’t move. . . . No, I don’t make no steps.” The testimony of other witnesses added nothing of substance to this description of the accident. The south half of Santa Monica Boulevard is 26 feet wide; 16 feet lie between the south curb and a single white line. Plaintiff lay in this lane after the accident. He sustained serious injuries.

The principal ground of the appeal is that it was error to admit, over objection, testimony by a police officer of statements of Barnes, in the presence of plaintiff, a few minutes after the accident to the effect that plaintiff ran into the Barnes’ car. The testimony was offered as “An act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto” (Code Civ. Proc., § 1870, subd. 3), and upon the theory that the jury might believe that plaintiff heard the statement of Barnes and failed to contradict it.