Bettencourt v. Direct Transportation Co.

California Court of Appeal Nov 30, 1962 No. Civ. 141Published

Before: Stone

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Holding. The court affirmed the order granting a new trial, holding that the trial court acted within its discretion in determining that the admission of an officer's opinion based on dissimilar experimental conditions and the giving of erroneous "looking and not seeing" instructions constituted prejudicial error.

Issues

Whether the trial court erred in admitting an officer's opinion testimony based on an experiment with dissimilar conditions.
Whether the trial court erred in giving "looking and not seeing" instructions that were previously withdrawn by the defendants.
Whether the trial court abused its discretion in granting a new trial based on the cumulative effect of evidentiary and instructional errors.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The results of controlled experiments are admissible in evidence at the discretion of the trial court, provided the conditions at the time of the experiment are substantially similar to those obtaining at the time of the occurrence under dispute.”

“Whether the boy should have seen, or even could have seen the trailer was a question of fact for the jury to determine from all of the evidence.”

STONE, J.—

Defendants appeal from an order granting plaintiffs’ motion for a new trial following a jury verdict for defendants. Plaintiffs’ son, driving their Jeep station wagon, collided with defendants’ truck and trailer loaded with shingles. The accident occurred at 8 p. m. April 15, 1959, on Highway 41 in Madera County. The locale is in the foothills or lower mountain area near the town of Oakhurst. At the point of impact the highway runs generally north and south. Defendants had stopped on the easterly side of the highway and were in the process of crossing the roadway from east to west at a southeasterly angle. It was dark at the time and the truck head and clearance lights were properly lighted. When the tractor had just reached the northbound lane, but with the trailer still at a slight angle and blocking the southbound lane, the boy rounded a curve, driving downhill in his

[407]

proper southbound lane, and struck the trailer. He was killed and the jeep was demolished.

Since the order granting a new trial did not mention insufficiency of the evidence, we must assume that the motion was not granted on that ground. (Code Civ. Proe., § 657;

Aced

Hobbs-Sesack Plumbing Co.,

55 Cal.2d 573, 577 [12 Cal.Rptr. 257, 360 P.2d 897].) Plaintiffs concede this to be the law, but they argue that errors of law occurred during the trial which justify the order.

First they contend that the court erred by not granting their motion to strike testimony of a California Highway Patrol Officer concerning deceased’s opportunity to see the truck. The officer had made certain stopping tests at the scene of the accident, and after testifying concerning these tests, the following occurred:

“Mr. McCormick

1 ‘ Q. Did you have any difficulty in seeing that area ? A. Not at that time. I had no difficulty.

‘1Q. That is why you thought it was hard to realize why the driver of Vehicle 2 did not observe the danger, and put that in your report? A. That’s what I have in my report, yes, sir.

Bettencourt v. Direct Transportation Co.

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