Ralfe Kaminski v. Chester Meadows ( 1959 )

HASTINGS, Circuit Judge.

Ralfe Kaminski, plaintiff-appellant, brought this diversity action against Chester Meadows, defendantappellee, to recover damages for injuries arising out of an automobile collision alleged to have been occasioned by the negligence of defendant in driving his automobile. The accident occurred at the intersection of U. S. Highway 80 and Indiana Highway 2 near Valparaiso, Indiana. We are governed by the law of the State of Indiana. There was a trial by jury resulting in a verdict for defendant upon which the district court entered judgment from which this appeal is taken. The errors relied upon arise out of rulings on the admission of certain evidence, the giving of an instruction as to plaintiff’s contributory negligence and the denial of plaintiff’s motion for a new trial.

Because of the nature of the issues to be determined, a full statement of all the facts surrounding this collision is not required. We shall mention only those relating directly to the questions raised.

Plaintiff first contends that the trial court erred in admitting certain testimony of plaintiff’s witness, Ronald Stevens, upon cross-examination, concerning a declaration made to the witness by defendant shortly after and at the scene of the accident. Stevens, a deputy sheriff of the county in which the accident happened, was called by plaintiff to testify as to what he observed at the scene of the accident when he arrived and as to what he did in the performance of his duties.

The record shows that Stevens, after receiving a call reporting the accident, arrived at the scene within a few minutes (plaintiff’s brief states “this was about 5 to 10 minutes after the collision”), found the ambulance already there, took charge and began his investigation. Plaintiff’s counsel then asked, on direct examination:

“Q. Immediately after this accident, Mr. Stevens, did you have occasion to talk to any of the parties involved? (Our emphasis.) A. Yes, sir.

“Q. Did you have a conversation with the defendant, Mr. Meadows? A. Yes, sir.

“Q. Who was present? A. Just Mr. Meadows and myself.

“Q. Was Mr. Kaminski there? A. No, sir.”

In answer to further questions, Stevens testified that he had a conversation with Cyril Kaminski, plaintiff’s brother and driver of car in which plaintiff was riding at the time of the accident, with no one else present, and that he did not talk with plaintiff. Stevens was not asked and did not relate the substance of either of these conversations on direct examination.

On cross-examination by defendant’s counsel, Stevens testified that after helping put plaintiff in the ambulance, setting up fusees and taking care of the traffic, he had a conversation with defendant who came to him looking “all right, a little shaken.” Defendant’s counsel then asked, “What did he say to you?” Objection was made by plaintiff on the ground that this was hearsay, the declaration called for being outside the presence of plaintiff. Defendant urged that it was part of the res gestae, to which plaintiff answered that it was not competent “unless counsel can show that it happened so quickly after the accident as to be part of the res gestae.’’ During the colloquy the trial court indicated that he thought he would overrule the objection because plaintiff had asked the witness on direct examination whether he talked to defendant, and that plaintiff then did not choose to ask about it further. After further discussion the court then stated he would overrule the objection and plaintiff’s counsel made his formal objection for the record, as follows:

“I am going to object to the question as to what the conversation was, on the ground that it was improper cross-examination where the witness has testified that the conversation was held out of the hearing of the plaintiff, and my asking the question as to whether he had a conversation and asking who was present did not open up the subject for cross-examination.”

The court overruled the objection (without assigning any specific reasons) and the witness answered as follows:

“A. Mr. Meadows stated to me that he was headed west on U. S. 30, and that as he approached the intersection he pulled into the left turn lane to make a left turn, and that the green arrow was lit as he made his left turn.

“Q. I will ask you whether or not he did not also further state that the driver of the other car did not stop but came through and struck him. A. Yes, sir.”

It is fundamental that “when the direct examination opens on a general subject, the cross-examination may go into any phase of that subject, and cannot be restricted to mere parts of a general and continuous subject which constitutes a unity.” Osburn v. State, 1905, 164 Ind. 262, 275, 73 N.E. 601, 606. As pointed out in 58 Am.Jur. 352, the application of this rule “is sometimes attended with considerable difficulty, because it is not always easy to determine what is within and what is without the scope of the direct examination. Therefore, much is necessarily left to the sound discretion of the trial court in determining what is proper cross-examination, * * *.” (Our emphasis.)

Each party has argued the question of whether or not the testimony was admissible as part of the res gestae. This necessarily turns on the factual situation in each case, and “is a matter within the sound discretion of the trial court, the determination of which is ordinarily conclusive on appeal, in the absence of a clear abuse of discretion.” (Our emphasis.) 20 Am.Jur. 557. Whether the declaration could be so received “was peculiarly for the trial court to determine under all the circumstances in issue *■ * *.” Cincinnati, H. & D. R. Co. v. Gross, 1917, 186 Ind. 471, 477, 114 N.E. 962, 965. The latest expression on this subject by the Appellate Court of Indiana is that “Indiana is firmly committed to the rule that the admission of evidence coming within the res gestae rule is peculiarly within the discretion of the trial court. * * (citing cases).” Kreuger v. Neumann, Ind.App. 1958, 154 N.E.2d 741, 745.

There is no merit in plaintiff’s contention that defendant has raised the question of res gestae for the first time on this appeal. The record clearly shows otherwise. It was argued by both parties at the time plaintiff objected to the question under consideration. It is interesting to note that plaintiff sought to invoke the res gestae doctrine in examination of his witness, Karcher. Karcher was the driver of a truck at the scene of the accident and was an eye-witness. On direct examination plaintiff’s counsel asked Karcher what defendant said to him at the scene of, and shortly after, the accident. Defendant objected and plaintiff’s counsel then argued to the court that: “It is a part of the res gestae.” The objection was overruled and Karcher was permitted to answer, as follows: “I asked the man [defendant], what caused him to do that, and he replied to me, he said, T do not know.’ ”

We have carefully examined the record of the evidence in this case and conclude that there is no showing of an abuse of discretion by the trial court in receiving this testimony on cross-examination as coming within the scope of the subject matter inquired into on direct examination, and that it was not reversible error to so rule. Having so held, we need not decide whether it was properly admissible as part of the res gestae.

Plaintiff’s remaining contention is that he was free from contributory negligence as a matter of law and that the trial court erred in instructing the jury on the subject of contributory negligence. The record shows that at the close of all the evidence defendant sought and was granted leave, over plaintiff’s objection, to file a second paragraph of answer pleading the defense of contributory negligence. Plaintiff makes no objection to the form of this instruction but contends that it was improper to give any instruction on this issue. Since, in Indiana the jury returns only a general verdict for the prevailing party; and since no special interrogatories were directed to the jury on the question of contributory negligence, we have no way of knowing how the jury determined this particular issue.

An Indiana statute provides that contributory negligence on the part of the plaintiff is a matter of defense (Burns’ Ind.Ann.Stat. § 2-1025 (1946 Repl.)), and it has long been held that the “statute places the burden of proving contributory negligence on the defendant in a personal injury case.” Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 556, 114 N.E.2d 873, 875. It is equally well-settled that contributory negligence may be established “without regard to whether such evidence was given by the plaintiff or defendant, or by both.” Indianapolis Street Ry. Co. v. Taylor, 1902, 158 Ind. 274, 279, 63 N.E. 456, 458.

In Lincoln Operating Co. v. Gillis, supra, 232 Ind. at pages 555-556, 114 N.E.2d at page 875, the Supreme Court of Indiana in determining whether plaintiff was guilty of contributory negligence as a matter of law, reaffirmed its rule that: “If the facts are in dispute, or if reasonable men may draw different conclusions from undisputed facts, the question of negligence is one for the jury; but if the facts are not in dispute, or if the facts most favorable to the proponent, together with all reasonable and logical inference that may be drawn therefrom be assumed as true, and reasonable men could draw only one inference from such assumed facts and inferences, then the question of negligence becomes one of law for the court.”

Plaintiff was riding as a guest of the operator of the vehicle (his brother) at the time of the accident and was “required to use that degree of care for his own safety that an ordinarily prudent person in like circumstances would use under the same or similar conditions.” Stull v. Davidson, 1955, 125 Ind.App. 565, 582-583, 127 N.E.2d 130, 138. Further, it has been held that “[w]hat prudence and the exercise of care would require persons to do in an interval of a few seconds to guard against injury by the negligent acts of another, was peculiarly a question for the jury.” General American Tank Car Corp. v. Melville, 1929, 198 Ind. 529, 536, 145 N.E. 890, 893.

The only evidence bearing on contributory negligence was the testimony of plaintiff and his brother, the driver of the car. This shows that plaintiff was sitting in the right hand corner of the seat to the right of his brother looking across the left front fender, listening to music on the car radio and talking to his brother. Plaintiff was, himself, an experienced driver. The car had been traveling about 55 to 60 miles an hour on a four-lane highway and, as it approached a curve, it slowed down while passing a truck. The car again picked up speed and as it approached the intersection at a distance of about 150 feet, plaintiff said he saw a car making a left turn in front of them and called to his brother, “The guy is coming through.” The car slowed down and the collision followed. Plaintiff said that he did not observe the traffic signals at the intersection, that he had not been paying any particular attention to traffic on the highway, and that he did not feel any obligation either to watch for traffic lights or generally with reference to his brother’s driving of the car. Plaintiff’s brother testified that “coming out of the turn, I noticed the light was red, so I began to slow down the car, waiting for the light to change; and then the light changed, I stepped on the gas, and started to proceed; and then Mr. Meadows’ car came in front of mine, and there was a collision.” He indicated further that he was about 100 feet away when plaintiff first called his attention to defendant’s car, and was traveling about 35 miles an hour at the time of the impact. It was daylight and the driver had an unobstructed view of defendant’s car.

From these facts and circumstances we hold that the question of whether plaintiff exercised that degree of care required of him for his own safety, under the rules above stated, was properly one for the jury to determine, and that plaintiff was not free from contributory negligence as a matter of law. The trial court did not err in instructing the jury on this issue.

We have carefully considered the cases cited by plaintiff on this proposition and find them inapplicable for the reason that they involve situations in which there was either no evidence or there could not have been any evidence of contributory negligence. There were in those cases no facts from which reasonable men could draw different inferences and conclusions. All of the cases cited by both parties point out the necessity for courts of appeal to place a reasonable measure of reliance upon the fairness of the trial court in exercising its discretion in such matters. The resolution of such disputes should be approached in a spirit of liberality to the end that substantial justice may be done.

We hold the trial court properly denied plaintiff’s motion for a new trial, and the judgment is

Affirmed.