Goody v. City of El Cajon

223 Cal. App. 2d 259, 35 Cal. Rptr. 896, 1963 Cal. App. LEXIS 1524
CourtCalifornia Court of Appeal
DecidedDecember 12, 1963
DocketCiv. No. 6998
StatusPublished
Cited by1 cases

This text of 223 Cal. App. 2d 259 (Goody v. City of El Cajon) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goody v. City of El Cajon, 223 Cal. App. 2d 259, 35 Cal. Rptr. 896, 1963 Cal. App. LEXIS 1524 (Cal. Ct. App. 1963).

Opinion

COUGHLIN, J.

This is an action to recover damages for injuries allegedly sustained by the plaintiff as a result of the negligent operation of an automobile by the defendant Irey, a traffic officer, employed by the defendant City of El Cajon.

In Goody v. City of El Cajon, 196 Cal.App.2d 6 [16 Cal.Rptr. 254], this court affirmed an order of nonsuit, dismissing the action as to the defendant Irey, and reversed a judgment on the pleadings in favor of the defendant city. Subsequently, the action against the city was tried before a jury and resulted in a judgment in its favor. The plaintiff appeals.

On the evening of October 6, 1958, the plaintiff while driving a 1957 Ford pickup truck, was stopped by Officer Irey for an alleged traffic violation, viz., excessively loud exhaust noise; was advised by the officer that the exhaust noise from his truck was too loud; protested that it was not too loud; refused to accelerate his motor, at the officer’s request, so that the extent of the noise made thereby could be determined; claimed that this would be unwise because of a “knock” in the motor which he feared was due to a defective rod; got out of the truck when the officer commanded him to do so; stood beside the open truck door, between it and the body of the truck, facing the latter, with his left arm resting on top of the former, when the officer accelerated the motor, causing the truck to lurch forward; and claimed that his hand was caught in the door, that he was dragged forward, and that his left shoulder was injured.

The plaintiff testified that as he left the truck the motor was running; the transmission was in its “drive” position; that he set the emergency brake; that he took the position heretofore noted beside the truck; that, simultaneously, the officer entered the truck and sat on the driver’s side; and that as the officer accelerated the motor the truck lurched forward about 6 feet.

[262]*262The officer testified that when he requested the plaintiff to accelerate his motor the latter stated that he did not want to, but the officer could; that he motioned the plaintiff to move to the center of the seat but instead of doing so the plaintiff got out; that he, the officer, did not enter the truck; that he accelerated the motor by placing one foot into the truck and tapping on the accelerator pedal; that the truck moved forward about 6 inches, and the engine “died”; and that the plaintiff said: “You tore my arm off”; and asked to be taken to a hospital, but did not appear to be in pain or discomfort.

At the hospital the admitting nurse requested the plaintiff to sign a paper, which he refused to do until he had talked to his attorney.

Among the issues for determination by the trier of fact was whether Officer Irey’s action at the time of the subject incident constituted an “operation” of the truck within the meaning of section 17001 of the Vehicle Code; if so, whether it was a “negligent operation”; whether the plaintiff was contributorily negligent; and the extent of the injuries claimed to have been received by the plaintiff as a result thereof.

At the trial, the plaintiff related his version of the incident under inquiry. He also testified that his truck was a year old; was new when purchased; was in good condition; did not have “unusual appliances or any extra appliances on it, either pipes or anything of that nature”; and that its equipment was standard. This testimony would support a contention that his truck was not making loud exhaust noises on the date in question, and that the officer had stopped him without cause. In addition, he testified that the officer delayed an hour and a half, without cause, before taking him to the hospital.

The import of the foregoing testimony has a bearing on the extent of the plaintiff’s cross-examination during which, over objection, he was interrogated respecting incidents occurring both before and after the subject accident, when allegedly he had been stopped by traffic officers because his truck had been emitting loud exhaust noises. At the trial the objection to this interrogation was based upon the ground of immateriality. On appeal the contention is that it was irrelevant; “driving with loud exhaust pipes was irrelevant to the issues in the instant case ’ ’; evidence showing that the plaintiff had been stopped by police officers because of such driving was [263]*263irrelevant as proof of that fact; and, for this reason, the court erred in overruling his objections thereto. In reality, the issue involved is whether the interrogation was a proper subject of cross-examination; was directed to a material issue; and was relevant to the proof of that issue.

Prior to the interrogation in question the attorney for defendant, outside the hearing of the jury, advised the court and counsel for the plaintiff that he intended to interrogate the plaintiff concerning other occasions when the latter had been stopped by the police because of loud muffler noises, for which he had been found guilty, and argued that he should be permitted to do so in an attempt to show that, contrary to the plaintiff’s apparent contention, the muffler on his truck was defective. After hearing the contentions made by both sides, the trial court expressed its belief that any examination respecting traffic convictions would be improper; that, otherwise, cross-examination directed to the subjects in question was permissible; but admonished the defendant not to inquire whether the plaintiff had been convicted of any alleged violations.

Preliminary to the indicated cross-examination it was established that the plaintiff’s truck was in the same condition both before and after October 6, 1958, i.e., the date of the subject accident, as it was on that date. Thereupon, the plaintiff was asked if he had been stopped on April 4, 1958, i.e., before the accident, because of loud exhaust noises coming from his truck; whether he got out of his car at that time; and whether he then listened to the sound coming from his motor. To each of these questions he replied, in substance, that he did not remember. Then he was asked similar questions concerning an incident occurring after October 6, 1958, in La Mesa. His answers, given at different times in the course of his cross-examination, were inconsistent. At first he stated that he probably was stopped, “if you say so”; that he did not know whether he then got out of his automobile; and, in response to the question whether he listened to ascertain whether his motor was making too much noise on this occasion, he stated that he did not remember “this occasion either.” Thereafter, he said he was not stopped in La Mesa. Subsequently, he testified that he had been stopped there but was driving an automobile other than his truck. In reply to a question whether he had been stopped after October 6, 1958, by a California Highway Patrol officer, with reference to the [264]*264condition of his muffler, he replied: “Not that I can recall, sir.”

After interrogating the plaintiff with respect to the aforesaid specific instances, the following questions and answers were asked and given: “Q. How many times in all were you stopped while driving that Ford Ranchero with reference to the condition of your muffler? A. Since that date, sir? Q. At any time driving that same automobile during the time it was in the same condition that it was in on the date of October 6th, 1958. A. Three times by Earl Irey.

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People v. Wilson
254 Cal. App. 2d 489 (California Court of Appeal, 1967)

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Bluebook (online)
223 Cal. App. 2d 259, 35 Cal. Rptr. 896, 1963 Cal. App. LEXIS 1524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goody-v-city-of-el-cajon-calctapp-1963.