Colwell v. Anderson

McINTYRE, Justice

(dissenting).

I cannot quarrel with the conclusion arrived at in the majority opinion to the effect that it was error not to permit the testimony offered by plaintiff from a witness who was at the intersection where the accident happened, who saw the accident, and who (according to the offer made) would have given his opinion as to defendant’s speed.

However, if it is held to have been erroneous for the trial court to exclude this offered testimony, then I cannot go along with the conclusion that the exclusion was nonprejudicial.

To say the exclusion was not prejudicial' because plaintiff himself testified as to defendant’s speed would imply there is no' place in the trial of cases for corroborating testimony. A jury might very well be inclined to disbelieve the testimony of a party who has an interest in the outcome, when it would accept the party’s testimony upon its being corroborated by a disinterested bystander who saw the accident.

Even if the witness was estimating defendant’s speed at a rate higher than the plaintiff estimated it, there would be no reason to say it would not corroborate plaintiff’s theory that defendant was driving at an excessive rate of speed. For cases which hold that a party is not conclusively bound by his own testimony as against other evidence which the fact-finding body might fairly believe, see the following cases and authority:

Gibson v. Mendocino County, 16 Cal.2d 80, 105 P.2d 105, 108; Holland v. Morgan & Peacock Properties Company, 168 Cal.App.2d 206, 335 P.2d 769, 773; Valdin v. Holteen, 199 Or. 134, 260 P.2d 504, 509; Dahlgren v. Blomeen, 49 Wash.2d 47, 298 P.2d 479, 481-482; Green v. Floe, 28 Wash.2d 620, 183 P.2d 771, 772; Alamo v. Del Rosario, 69 App.D.C. 47, 98 F.2d 328, 331; Annotation 169 A.L.R. 798, 809; and 9 Wigmore, Evidence, § 2594a, pp. 597-601 (3d Ed.).

In the annotation cited above, it is stated the rule that a party is entitled to the benefit of the testimony of other witnesses in contradiction to his own is especially applicable to circumstances of an accident or similar event. Also, in the Valdin v. Holteen case cited above, it is said, where the testimony of a party is in the nature of an estimate or opinion as to which he may honestly be mistaken, he does not unequivocally concede that the fact is in accord with the opinion expressed. In the case we are dealing with plaintiff’s testimony relative to defendant’s speed was only an estimate.

The writer of the majority opinion in this case seems to suggest the excluded testimony would have been more favorable to defendant than to plaintiff, because .it would have emphasized the negligence of plaintiff. Of course, this conclusion would be relevant only if we assume the jury found plaintiff guilty of contributory negligence. We are not entitled to make such an assumption. Moreover, we cannot in any event decide for the jury how it would have reasoned and whether it would have considered the testimony helpful to plaintiff or defendant. Suffice it to say, if defendant had thought it was going to help his case for an impartial bystander to say defendant was traveling 80 to 90 miles per hour, he probably would not have objected so strenuously to the witness’ opinion being expressed.

Although the witness at first stated the speed of defendant’s car was between 80 and 90 miles per hour, an objection was immediately made and sustained. It is true the objector did not ask to have the answer stricken, but thereafter counsel for plaintiff repeatedly attempted to qualify the witness and to have him restate his opinion as to speed. Each time objection was made and sustained without the witness being permitted to repeat his opinion as to speed. In view of the court’s repeated and final exclusion of the witness’ opinion as to defendant’s speed, we ought to assume the jury understood what the court intended, i. e., that the testimony sought from this witness was incompetent for the jury to consider.

For the reasons stated, I am unable to concur in the conclusion that error in excluding the testimony in question was nonprejudicial.