DocketNumber: File No. 8994.
Judges: Roberts
Filed Date: 4/23/1949
Status: Precedential
Modified Date: 10/19/2024
Plaintiff brought this action to recover damages for personal injuries sustained in an automobile accident. Harley Hoisington, driver of the automobile, and Harley H. Hoisington, its owner, are named as defendants. At the conclusion of all the testimony defendants moved *Page 546 separately for directed verdicts. The motion of the owner of the automobile was granted. The cause was submitted to the jury as against the other defendant and a verdict in the sum of $7,375 was returned in favor of the plaintiff. Motion for judgment n.o. v. was denied. Judgment was rendered on the verdict and this appeal followed.
As grounds for reversal appellant urges that the evidence is insufficient to support the verdict in that plaintiff was guilty of contributory negligence that proximately contributed to his injuries; that appellant was not liable for ordinary negligence because it conclusively appears from the evidence that plaintiff was transported in appellant's car as a guest; that counsel for respondent was guilty of prejudicial misconduct; that the trial court made prejudicial comment during course of argument to the jury; that the court erred in receiving over objection expert testimony given by a witness not appointed by the court and without reasonable notice to the appellant; and that the court erred in giving certain instructions and in refusing requested instructions.
[1] When the sufficiency of the evidence to support a verdict is challanged the court must view the evidence in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every reasonable inference that can be drawn therefrom. The statement of the evidence will be made in the light of this basic rule.
The respondent, Ben Peters, resided in the city of Sioux Falls and for several years had been employed by the Great Northern Railway Company as a boilermaker and at times as a fireman. On Sunday, February 16, 1947, at about nine o'clock in the evening plaintiff, dressed in his work clothes, went to a tavern known as Henry's Place. Respondent asserts that he had not seen appellant at any time during that day prior to eleven o'clock in the evening when the latter came into Henry's Place and asked him to fix the lights on appellant's car which had been "flickering" or "cutting out." Respondent had installed a battery in the Hoisington car two or three days previously and knew that there was something wrong with the wiring. *Page 547
Respondent called the father, Harley H. Hoisington, as an adverse witness under the statute. He testified that he said to his son, the appellant, when he asked to use the car to go to his uncle's place near Wentworth: "You can't drive it up there with the lights that way, you know the lights are not working on it." He further testified: "I said if you get them fixed, all right, but don't go out on the road with them that way because it was quite a ways up there and I knew the conditions of the road at that time." He asserted that there were no indications at that time that his son had been drinking.
After checking the battery cables on the car, plaintiff and appellant drove from Henry's Place to Pat's Tavern where, plaintiff testified, he had a drink of whiskey mixed with "7-Up" and appellant had two such drinks. Appellant was not certain about having more than two drinks at this place and whether the bottle from which the whiskey was poured was a pint or half pint. From this place the parties drove to the V.F.W. Club. Appellant went inside while respondent sat in the car with the motor running. Appellant testified that in this place he had a "couple of drinks or more" with friends. Appellant was in the V.F.W. Club about half an hour and then he and respondent drove west on Tenth Street leading directly away and not toward the home of respondent and turned south on Grant Avenue where the car stalled. It started when pushed by a passing car. At the time of the accident which occurred at about 1:30 A.M. they were driving west on highway 16 at a rate of 35 to 40 miles per hour. Plaintiff warned defendant about the slippery condition of the highway and said to him: "Take it easy, slow down a little." When the car left the highway and overturned plaintiff had his head up against the dash attempting to check the wiring underneath the dash. Plaintiff suffered a dislocation and fracture of the cervical vertebrae.
Fred Baker, deputy sheriff, testified that when he arrived at the scene of the accident respondent was being removed from the overturned car to an ambulance and that appellant was intoxicated and was placed under arrest. *Page 548 Appellant pleaded guilty in municipal court to a charge of driving while under the influence of intoxicating liquor.
We will first consider the question whether the trial court erred in refusing to rule that plaintiff as a matter of law was guilty of contributory negligence in riding with the appellant.
[2, 3] Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one conclusion pointing unerringly to the negligence of the plaintiff contributing to his injury. Jensen v. Juul,
[4-6] Contributory negligence in this case can only be predicated upon the fact that plaintiff knew or should have known that appellant was under the influence of intoxicating liquor. In Miller v. Stevens,
[7, 8] Appellant also contends that plaintiff was a guest within the meaning of the guest statute, SDC 44.0362, and that the court should have so instructed the jury. The statute applies to a person "transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation." In Scotvold v. Scotvold,
[9] It is claimed that there was injected into the trial by implication the matter of liability insurance. On cross-examination counsel for plaintiff asked appellant over objection concerning a statement made two or three days after the accident. Plaintiff had a right to determine whether appellant had made prior statements conflicting with evidence given. Behseleck v. Andrus,
[10, 11] It is claimed that counsel for plaintiff was guilty of misconduct in addressing a juror by his first name. When appellant objected the trial court made the following comment: "Gentlemen, I have instructed you in regard to deciding this case fairly and impartially upon the evidence and not to pay any attention to any remarks of court or counsel which are not warranted by the evidence, and I am going to leave it that way. You pay attention to the instructions and evidence as given you." The practice of addressing individual jurors by name or of singling out a particular juror and personally appealing to him is improper. Declaring a mistrial for improper argument, however, rests in the sound discretion of the trial court. Behesleck v. Andrus, supra. Under the record, we do not think that the court abused its discretion and we do not feel justified in interfering with the ruling of the trial court in refusing to declare a mistrial. Appellant complains of other statements made to the jury by counsel, but we find nothing in them warranting a reversal.
[12, 13] Appellant claims reversible error because of alleged prejudicial remarks made by the trial judge. Mr. *Page 551
Barron, a deputy state's attorney of Minnehaha county, appeared as one of the attorneys for the plaintiff. Counsel for plaintiff objected to statements made during argument on behalf of the appellant "with reference to Tom Barron, as deputy states attorney and where he should have been and what he should have been doing" because there was no evidence in the record to sustain such statements. In sustaining this objection the court expressed the opinion that Mr. Barron was a conscientious official. Counsel for appellant voiced no objection to the remarks of the court until the jury had retired. If there had been timely objection the court would have had the opportunity to correct the prejudicial effect, if any. The appellant cannot now predicate error upon remarks of the court made in the presence of the jury when the attention of the court was not directed to the matter by timely objection. See Smith v. Smith,
A further contention requiring consideration is that the court erred in permitting plaintiff to call an expert to testify without complying with Supreme Court Rule adopted Sept. 12, 1942, 68 S.D. XII; Cumulative Annotation, SDC 36.01. This rule, an adoption of the Uniform Expert Testimony Act, reads in part as follows:
"(1) Court Empowered to Appoint Expert Witnesses. Whenever, in a civil or criminal proceeding, issues arise upon which the court deems expert evidence is desirable, the court, on its own motion, or on the request of either the state or the defendant in a criminal proceeding, or of any party in a civil proceeding, may appoint one or more experts, not exceeding three on each issue, to testify at the trial.
"(2) Notice When Called by Court. The appointment of expert witnesses by the court shall be made only after reasonable notice to the parties to the proceeding of the names and addresses of the experts proposed for appointment.
"(3) Notice When Called by Parties. Unless otherwise authorized by the court, no party shall call a witness, who has not been appointed by the court, to give expert testimony *Page 552 unless that party has given the court and the adverse party to the proceeding reasonable notice of the name and address of the expert to be called."
[14-16] It will be noted that the court may allow an expert to testify though no notice has been given in advance. The judge conducting a jury trial has broad discretionary powers and control over the presentation of evidence. The rule recognizes this and the action of the court is reviewable only for abuse of discretion. The witness, as disclosed by the record, is a physician and surgeon. He assisted in removing plaintiff from the wrecked car to an ambulance and was thereafter called upon to examine and treat the plaintiff. The opinion of this witness was based on his personal observations and this is not a case where the facts to be considered by the expert were placed before him as a hypothesis. The provision for notice in this rule serves to guard against surprise and to enable an adversary to investigate the professional standing of the proposed expert witness. No question was raised concerning the qualifications of the witness and appellant and his counsel knew that this witness was at the scene of the accident and thereafter was plaintiff's physician. There is no intimation of surprise. These considerations lead us to conclude that there was not an abuse of discretion on the part of the trial court.
[17, 18] We are of the opinion that the assignments of error involving the giving of certain instructions and the refusal of requested instructions present no reversible error. In instruction No. 14 the court charged the jury as follows: "If you find for the plaintiff, he would be entitled to recover such sum as would reasonably compensate him for the injury and damage he has sustained, not exceeding $21,110.00 as claimed by him. And, in determining this amount, you may take into consideration the injury sustained by him and the pain and suffering endured, if any, his loss of earnings, and whether or not the injuries are permanent, always remembering that the damages must be reasonable." We cannot agree that inasmuch as SDC 37.1702 provides that damages may be awarded in an action "for detriment resulting after the commencement thereof, or certain to *Page 553
result in the future" this instruction did not give a correct application of the law. An identical statute was considered in the case of Leonard v. North Dakota Coop. Wool Marketing Association,
[19, 20] This does not mean that the matter of measuring damages may be left to mere speculation on the part of the jury. Facts must exist and be shown by the evidence which afford a basis for measuring the loss of the plaintiff with reasonable certainty. We think that the testimony of the physician who attended plaintiff justified a submission of the issue of permanent injury. *Page 554
[21, 22] Appellant contends that he was entitled to have instructions given to the jury which emphasized the fact that intoxication is not negligence as a matter of law. While this is a correct statement of the law as applied to this case, the court properly instructed the jury on the questions of negligence and contributory negligence. It was not error to refuse to amplify the instructions given which substantially cover the principle embodied in the requested instructions.
The judgment appealed from is affirmed.
All the Judges concur.
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