(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
Likewise, Smith would have no basis for his proffered opinion that Ms. Chance left the curb on a “southerly diagonal” :
Q (Bus USA Counsel): Okay. Now, the last question I have is when (Chance) she crossed the street from wherever she was south of the intersection did she go straight across, or did she cross it at a diagonal or at an angle, based on what you saw?
A (White): Well, I didn’t – when she jumped off the curl I saw her, but once she started crossing like you said the bus, I couldn’t see until he hit her over here. So I don’t know what direction she was heading. But when I couldn’t see her she could have been -what I saw was –
Q: I don’t want you to speculate.
A: What I saw she was going straight across.
Q: You saw her step off the curb, but the bus was going forward and he blocked your view?
(Depo Transcript P. White.)
As the above italicized words demonstrate, White wanted to speculate as to what happened to Chance, which she obviously did when speaking to Officer Smith at the accident scene.
In Ribble v. Cook (1952) 111 Cal.App.2d 903, 245 P2d 593, a police officer’s opinion was ruled to lack proper foundation, because it was based on the self-serving declaration of the defendant and the statement of a witness who did not see the impact, which evidence was clearly hearsay. The officer’s testimony was adjudged almost worthless, because it depended on the credibility of persons other than himself.
In Stuart v. Dotts (1949) 89 Cal.App.2d 683, 201 P2d 820, the Appellate court opined evidence may be given from personal observation on subjects such as whether a party is intoxicated, but not on facts related by other parties because the officer did not qualify as an expert witness, nor was a hypothetical question propounded based upon facts presented by other witnesses.
As a non-expert, he could only testify to matters that he had observed and were deemed too complex to present to the jury in any manner except as opinion evidence. In the present case the officer stated that in his opinion the Plaintiff was not in the cross walk when struck by the bus. Whether Plaintiff was in or out of the crosswalk, the evidence at the trial upon which this appeal is based played an important part in determining the point of impact and whether either or both parties were guilty of negligence. This admission of opinion testimony of the officer was found to be error that resulted in a miscarriage of justice.
Judgment for Bus USA should be set aside and a new trial ordered so that a miscarriage of justice not be suffered by a vulnerable pedestrian who, according to all admissible evidence, was in compliance with all rules of the road.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.