Wagner v. Olsen ( 1971 )

CALLISTER, Chief Justice:

Plaintiff appeals from a judgment, upon a jury verdict, of no cause of action in his suit for the wrongful death of his three year, ten month old son.

Since it is our duty on review to accept as fact that evidence and the reasonable inferences to be drawn therefrom which supports the jury verdict,¹ we will recite the facts accordingly.

Plaintiff was proceeding in a southerly direction, after dark, at about seven o’clock in the evening, in his automobile on U. S. Highway 91, in Layton, Utah, on November 1, 1964. He observed an automobile accident; so he continued to an area where he could make a U-turn and returned to the vicinity of the accident, parking his vehicle on the opposite side of the road. Pie parked in such a manner that his vehicle extended approximately two feet onto the edge of the pavement of the north-bound lane. This area is bounded by fields, and there is no street lighting to illuminate the immediate vicinity. Plaintiff left his three-year-old son, strapped by a seat belt in the vehicle, and crossed the four-lane, divided highway to the site of the accident. A highway patrolman and several other people were in attendance at the accident, and there was no evidence to indicate that plaintiff’s assistance was required; nevertheless, he remained for approximately 15 minutes at the scene, leaving his son alone in the car.

Defendant was proceeding in a northerly direction on Highway 91, in the same direction as plaintiff’s vehicle was parked. Defendant was traveling at a speed of approximately 39 miles per hour in a 40-mile-per-hour zone. One or more other vehicles were also parked near plaintiff’s car. According to defendant, as he passed the parked cars, the boy suddenly darted out onto the highway and was struck by defendant’s vehicle. The boy succumbed from the injuries he sustained, shortly thereafter. Evidence of a blood alcohol test indicated that defendant was under the influence of intoxicating liquor.² Defendant admitted consuming liquor prior to his operating the vehicle.

Plaintiff’s theory of this case, which was reflected both in his complaint and in the matters put in issue at the trial, was premised exclusively on defendant’s negligent operation of his vehicle in the following particulars: failure to keep a proper lookout, failure to keep the vehicle under proper control, driving at excessive speed under the prevailing conditions, driving under the influence of alcohol so as to be incapable of observing, responding, or reacting as would a normally prudent person under the circumstances.

The defense was buttressed on the theory that under the physical facts even a person with normal reactions, unimpaired by alcohol, would have been unable to avoid striking the boy. Defendant further pleaded that plaintiff was contributorily negligent in that he failed to exercise reasonable care' of his son under the circumstances.

On appeal, plaintiff contends that the trial court should not have instructed the jury concerning contributory negligence because there were insufficient facts adduced to justify such an instruction.

Plaintiff did not elect to take an exception to either Instruction No. 16 or No. 22.

Rule 51, U. R. C. P., provides:

* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto. In objecting to the giving of an instruction, a party must state distinctly the matter to which he objects and the grounds for , his objection. Notwithstanding the foregoing requirement, the appellate court, in its discretion and in the interests of justice, may review the giving or failure to give an instruction. * * *

Plaintiff has not complied with the requirements of Rule 51, U. R. C. P., and, on appeal, he has not sustained the burden to show special circumstances that would warrant a departure from the rule, i. e., he has failed to indicate a persuasive reason to invoke the discretion of this court to extricate a person from a situation where some gross injustice or inequity would otherwise result.³

Plaintiff urges that the trial court erred by its failure to instruct the jury that contributory negligence does not bar a recovery by plaintiff for injuries proximately caused by defendant’s wilful and wanton misconduct.⁴

There is nothing in the record to indicate that plaintiff requested such instruction. Furthermore, and of prime importance, plaintiff has asserted the concept of wilful and wanton misconduct as a ground upon which to predicate liability for the first time on appeal. Matters neither raised in the pleadings nor put in issue at the trial cannot be considered for the first time on appeal.⁵ In Simpson v. General Motors Corporation⁶ this court held that a party may not inject a new doctrine upon which to predicate liability for the first time on appeal. This court stated:

* * * Orderly procedure, whose proper purpose is the final settlement of controversies, requires that a party must present his entire case and his theory or theories of recovery to the trial court; and having done so, he cannot thereafter change to some different theory and thus attempt to keep in motion a merry-go-round of litigation.

Plaintiff asserts that the trial court erred in giving an instruction on unavoidable accident. Instruction 20 provided:

The law recognizes unavoidable accidents. An unavoidable accident is one which occurs in such a manner that it cannot justly be said to have been proximately caused' by negligence as those terms are herein defined. In the event a party is damaged by an unavoidable accident, he has no right to recover, since the law requires that a person be injured by the fault or negligence of another as a prerequisite to any right to recover damages.

In Calahan v. Wood⁷ this court cited the following principle:

“* * * there are some situations where the evidence is susceptible of being so interpreted that an accident occurred without negligence on the part of anyone, and if it is reasonably susceptible of such interpretation, and a party requests it, the trial court commits no error in so advising the jury.”

The statements of this court in Woodhouse v. Johnson ⁸ are equally applicable to the instant action:

* * * the parties are entitled to have the jury instructed concerning their respective theories of the case, we are not persuaded that the trial court committed error which would justify reversal in giving it. If the accident happened as the defendant contends, * * * there is nothing further in the exercise of reasonable care that she should have done to have avoided the accident ; and thus from her point of view, the accident would be unavoidable, and there could be no great harm in so advising the jury.

In the instant action the main thrust of the defense was that from defendant’s position the accident was unavoidable. At trial, the child’s negligence was never an issue, and through an expert witness, the defense established the requisite distances to stop based on the physical evidence at the scene. Instruction 20 clearly coincided with defendant’s theory of the case. Furthermore, even if this instruction were improperly submitted to the jury, it did not constitute reversible error. A survey of the entire record reveals that the parties were given a fair trial and had the issues of fact and the applicable law presented to the jury in a clear and understandable manner.⁹

Plaintiff further urges that defendant’s expert witness was permitted to give an opinion based on facts not in evidence. A hypothetical question was posed to Captain Pitcher, Highway Patrol, concerning the stopping distance of a vehicle based on the physical facts established by the evidence.

On appeal, plaintiff challenges all the facts, and defendant in turn cites the record to establish the basis of each. However, at trial plaintiff’s objection was asserted on the ground that the hypothetical question concerned the stopping distance for a person with a normal reaction time, and he vigorously contended that there was no evidence to indicate that defendant’s reaction would be normal but would be impaired by intoxication.

The trial court properly overruled plaintiff’s objection. The hypothetical question properly presented the defense’s theory of causation, namely, that the death of plaintiff’s son was not proximately caused by the manner of operation of the vehicle.

* * this court has long recognized that where the facts are in dispute, hypothetical questions may be framed either upon all the facts of the case, or upon facts which fairly represent the theory of the party producing the expert.¹⁰

Finally, plaintiff contends that the trial court improperly limited plaintiff’s cross-examination of defendant’s expert witness, Captain Pitcher. Plaintiff did cross-examine the defense witness so as to test his credibility, knowledge and good faith. Plaintiff, however, reiterated the hypothetical question submitted by the defense except he substituted the reaction time of an intoxicated person for that of a normal one. The trial court sustained the objection of the defense, which was on the ground that the question went beyond the testimony given on direct examination.

* * * The latitude permitted in the cross-examination of an expert witness is even wider than in the case of an ordinary opinion witness. No rule can be laid down that would determine the extent and limitation of cross-examination allowable in every case. Generally speaking, the matter must rest in the sound discretion of the judge trying the case. * * *¹¹

Plaintiff has not established that the trial judge abused his discretion and thus that his ruling was prejudicial. Furthermore, plaintiff was given an opportunity to discuss the matter with the witness during a short recess and to determine whether he wished to call Captain Pitcher as his own witness. Under the foregoing circumstances there is no ground upon which to sustain his assertion of prejudicial error.

The judgment of the trial court is affirmed; costs are awarded to defendant.

TUCKETT, HENRIOD, and CROCKETT, JJ., concur.

1 . First Security Bank of Utah v. Lundahl, Inc., 22 Utah 2d 433, 434, 454 P.2d 886 (1969).

2 . See See. 41-6-44 (b) (3), U.C.A.1953, as amended 1957.

3 . McCall v. Kendrick, 2 Utah 2d 364, 366, 274 P.2d 962 (1954).

4 .Ferguson v. Jongsma, 10 Utah 2d 179, 186, 350 P.2d 404 (1960).

5 . Estate of Ekker, 19 Utah 2d 414, 416, 432 P.2d 45 (1967).

6 . 24 Utah 2d 301, 303, 470 P.2d 399, 401 (1970).

7 . 24 Utah 2d 8, 10-11, 465 P.2d 169, 170 (1970).

8 . 20 Utah 2d 210, 214-215, 436 P.2d 442, 446 (1968).

9 . See. Calahan v. Wood, note 7, supra.

10 . In Re Richards Estate, 5 Utah 2d 106, 112, 297 P.2d 542, 546 (1956) ; also see Caperon v. Tuttle, 100 Utah 476, 482, 116 P.2d 402 (1941), wherein this court observed that opinions as to stopping distances of automobiles are admissible when based on facts such as the type of car, the surface and grade of the road, and similar circumstances which correspond to the evidence before the court.

11 . Bott v. Wendler, 203 Kan. 212, 453 P.2d 100, 113 (1969) ; also see 71 A.L. R.2d, Anno : Expert Witness — Cross-Examination, § 5(b), p. 15.