DocketNumber: No. 28,698.
Judges: Stone, Holt, Loring
Filed Date: 4/1/1932
Status: Precedential
Modified Date: 10/19/2024
The complaint charged that defendant's truck "was unlawfully, carelessly, negligently arid wrongfully parked and standing on the paved portion of" the highway. Defendant's answer was a general denial, with certain admissions not now important, and containing the defensive allegations that plaintiff's injuries resulted solely from her own and her brother's negligence. The sharply disputed issues of the trial were whether the truck was parked wholly or only with the left wheels on the pavement and whether its tail light was burning. The body of the truck reached some ten feet from the ground, was seven and a half feet wide, and some 19 feet long, painted white. The tail light was near the top of the left-hand corner of the body, about nine and a half feet from the ground. The Ford carried the usual driving headlights and was being driven at a speed of 35 miles an hour. The night was very dark, but there was no evidence of other atmospheric conditions at the point of the accident which would interfere with vision. Plaintiff and her brother both testified that they were looking straight ahead and did not see the truck until they were within so few feet of it that the crash came before there was an opportunity to make a move. Defendant, by experiment and photographs taken during a night of similar darkness, with the truck in practically the same position, and seated with the camera in a Ford of a type like that in which plaintiff rode at the time of the collision, sought to convince the jury that the truck was visible, so that if plaintiff and her brother had used ordinary care they could have discovered it in time to pass safely. Plaintiff offered testimony to the effect that the tail light of the truck was not burning when the collision took place. Defendant adduced testimony that it was lit; but the inference from that testimony was that, owing to the slipping of the generator belt, the battery was weakened and the tail light, as well as the headlights, was dimmer than usual. The verdict was for $6,950, nearly $2,000 of which represents loss of clothing and wages and the cost of hospital, nurse, and medical services. Defendant appeals from the order denying its motion in the alternative for judgment notwithstanding the verdict or a new trial. *Page 574
The errors assigned are too numerous to discuss separately, and we follow the grouping of them which counsel has pursued in the brief. The first relate to rulings during the trial. The incident in respect to the cross-examination and redirect of Harold Olson concerning his testimony in a previous trial of a case growing out of this accident does not afford ground for a new trial. The trial court rectified the error, if any, by directing the jury to disregard the answer to a question objected to. Over objection Harold Olson was permitted to testify that he would have seen the tail light on the truck if there had been one lit. It may be conceded that technically the witness testified to a conclusion and not a fact. Hathaway v. Brown,
"Facts may be submitted to a jury in the form of an opinion when they cannot otherwise be adequately or easily described." 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 3315.
The cross-examination of defendant's manager, Butler, in view of his position, cannot be held to have taken too wide a scope. The court properly restricted the attempted impeachment of Butler.
One Quigley was a witness for plaintiff. He, in company with one Fitch, came to the scene of the collision within a minute or two after it happened. Approaching from the north, they were so near that they heard the crash and saw the Ford burst into flames. Fitch was not a witness; and plaintiff's counsel, over objection, elicited from Quigley that Fitch was an insurance adjuster, and thereafter attempted to make improper use of such evidence. But we think the trial court thwarted counsel in this, so that we are unable to see that any prejudice could have resulted to defendant. As soon as it appeared that Quigley testified only to what he was told by Fitch the court struck the testimony from the record. In *Page 575 connection with Quigley's examination as a witness, a controversy arose between counsel as to insurance companies' being interested in plaintiff's case as well as defendant's when the court interposed this remark: "So far as the parties to this case are concerned, I take it the insurance company representing the defendant only is interested." In a way defendant's counsel provoked the remark, for he knew that the case had been dismissed as to plaintiff's mother, who carried insurance on the Ford; and just before the court used the quoted words defendant's counsel had stated that an insurance company was interested in the defense. This incident cannot be deemed of sufficient importance to call for a new trial.
Error is assigned upon the refusal of the court to direct a verdict for defendant and the refusal to give two requested instructions. On the proposition that defendant was entitled to a directed verdict are cited Sorenson v. Sanderson,
Defendant also assigns as error a refusal to instruct on plaintiff's contributory negligence in the language used in DeHaan v. Wolff,
"The defendant also claims that the plaintiff, Leona Olson, was guilty of negligence proximately contributing to her injury. If she was guilty of negligence proximately contributing to her injury, she cannot recover, no matter though the defendant has been negligent. If in doing what she did, riding in the car as she did, she failed to exercise the degree of care and caution and prudence for her own safety which an ordinarily careful, prudent, and cautious person would have exercised, then she was negligent; and if such negligence proximately contributed to her injury, she cannot recover in this case."
The court then stated that on defendant was the burden of proof as to contributory negligence, and later the court gave three instructions, at defendant's request, upon the same subject: One virtually in the language of the court above quoted; one that if she could or should have seen the truck in time to have warned the driver of the Ford of the danger and in time for him to have avoided the collision she could not recover; and one calling attention to the different items and circumstances to be considered by the jury as bearing upon her negligence, such as weather conditions, speed of the Ford, position and lights of the truck, plaintiff's opportunity *Page 577 for observation, and conversation or distracting circumstances in the Ford car. (Defendant's requests Nos. 1, 2, and 3.)
Defendant also claims misconduct of Mr. Essling, the one of plaintiff's counsel who examined the witnesses and made the final argument to the jury. Aside from a too minute and searching examination on apparently trivial points and a persistency in reverting to questions which the court had ruled improper, there is nothing particularly objectionable except in the attempt to make something out of the absence of Fitch as a witness, already discussed. Mr. Essling's final argument in full is made a part of the settled case. No part of the argument of opposing counsel appears. We therefore cannot say how far the argument appearing in the record was in answer to the prior argument for defendant. As to misconduct on the final argument, defendant specifies 23 parts or portions thereof as such, but saved the record only as to three parts.
The latest case upon the necessity of timely objection and exception to improper argument to a jury is Moquin v. M. St. P. S. S. M. Ry. Co.
Considering the injuries and the terrible sufferings the fractures and burns inflicted, we cannot hold the verdict excessive. The attending doctor estimated the skin upon one-twentieth of the surface of the body was burned, some of the burns being second and third degree burns. She lost five of her front teeth. One of her wrists has an ugly scar. She is a young woman, and the injuries have left her nervous and somewhat reduced in weight. The full movement of the knee joint has not been restored. The burns are likely to continue to give pain and discomfort. Compared with such cases as Tuttle v. Wicklund,
The order should be and is affirmed.
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