Robbins v. Weed

Evans, J. Thirty errors are specified as grounds of reversal. Manifestly, we cannot consider them in detail, within the appropriate limits of an opinion. The accident in question occurred at 2 P. M. on September 30th. There was nothing apparent in the surrounding circumstances to interfere with visibility or audibility. The plaintiff was crossing Eleventh Street at a regular crossing. The defendant was driving north on the same street, and approaching such crossing. There does not appear to have been any congestion or confusion of traffic. The plaintiff had so crossed the street as to be within about eight feet of the farther curb. The defendant was driving at a moderate rate of speed. There is no apparent reason why the defendant could not have avoided the plaintiff, nor any why the plaintiff could not have avoided the defendant. Nevertheless, the collision resulted which threw the plaintiff to the pavement, resulting in a fracture of the base of the skull. The defendant’s version of the immediate circumstances of the accident is that he undertook to pass behind the plaintiff, — that is, to the left, — and that he drew his vehicle to that side, but that the plaintiff suddenly stepped backward three or four steps, right in front of his car. This version had the corroboration of one eyewitness. The version offered on behalf of the plaintiff was that the defendant drove over him recklessly or negligently, without dis [66] covery of danger by him, and that the defendant gave him no warning of Ms approach, by horn or otherwise. The plaintiff himself did not testify as to these immediate circumstances, his memory thereof having been completely obliterated, as a result of the accident. He had-no recollection of any events transpiring within three days prior to the accident, nor within many days thereafter. This version offered on behalf of the plaintiff had the support of the evidence of one eyewitness. Under this version, the plaintiff did not step backward in front of the defendant’s automobile. The only material conflict in the evidence appears at this point. 1. witnesses: permissible leading question, I. Fourteen of the errors specified as grounds of reversal pertain to rulings on the admission of testimony. Counsel for plaintiff asked the witness Miller the following questions: “Q. State whether you saw — state whether or not the driver, so far as you could see, attempted to turn to either side for the purpose of avoiding Mr. Robbins, or did he come straight on? A. It didn’t look to me as though he did. Q. State1 whether or not he came straight on towards Mr. Robbins. A. I think he came straight on.” Each of the foregoing questions was objected to as leading and suggestive, and the objection was overruled. The answrers are indicated. The ruling is now challenged. The form of each question was within the limits of the discretion of the trial court. We see nothing either in the ruling or in the answers elicited which would justify a reversal of the case. We reach the same conclusion as to an alleged leading question put to the witness Dr. Krause. [67] 2. Negligence : future probability of insanity, etc. [66] II. Two medical witnesses testified on behalf of the plaintiff. It appeared that the plaintiff had suffered a fracture of the base of the skull; that he was unconscious [67] for many weeks; that a trephining operation had been performed upon his skull; that he was irrational for a long time, while at- the- hospital, even after recovering apparent consciousness; that, since his comparative recovery and return from the hospital, he has had irrational intervals; that he was much changed in manner and temperament ; and that he suffered a continual headache, and more or less loss of muscular control. Testimony was elicited from each of the medical witnesses, bearing upon the future probabilities as to resulting insanity or epilepsy. All this testimony was objected to on many grounds. The general purport of the objections and the present complaint is that it was mere speculation and guesswork on the part of the witnesses. The degree of probability was, of course, a mere opinion, based, however, upon a degree of expert knowledge. We think the testimony was all properly received, if for no other reason than as bearing upon the plaintiff’s future recovery. At the time of the trial, he was still under great disability. Presumptively, this would continue for some length of time, and the plaintiff had the right to offer expert testimony on that subject. 3. evidence: appearance of health. Dr. Conn had been the family physician of the plaintiff for some years, and had visited professionally in his home many times. At the time of the accident, he had the professional care of a member of the plaintiff’s family, and had been making daily visits to his patient for some time previous to the accident. He had never, however, treated the plaintiff himself'personally for any illness. He was asked as a witness to state his observation of the plaintiff’s state of health. Answering such question, he characterized the plaintiff as a well, healthy man. This testimony was received over the objection of the defendant, and error is laid upon it now. The argument is that the [68] witness had never examined the plaintiff, and that n.q hypothetical question was put to him. The objection is hypercritical. The testimony simply amounted to saying that the doctor had observed nothing to the contrary. An opportunity for observation was shown. If the defendant’s argument were to be heeded, a healthy man would usually find it impossible to prove his good health upon a past date, for want of a medical examination. Medical examinations are usually for the sick, and not for the healthy. 4. evidence : blame-III. Certain witnesses were examined on behalf of plaintiff who testified to certain • statements made by the defendant to the effect that he himself was to blame for the accident. This line of testimony was objected to, and the adverse ruling is now presented for our consideration. The argument is that' the alleged admission of the defendant, if any, involved, at best, a mere opinion or conclusion on his own part, and that it involved even his conception of legal duty and liability. It is undoubtedly true that a man might have an erroneous view of the law of liability arising out of an accident, and that he might commit himself to an admission of liability which would not necessarily be binding upon him. But this fact would not necessarily render evidence of such admissions inadmissible in evidence. Taking the testimony as true, the statements ascribed to the defendant were inconsistent with his testimony as to the circumstances of the accident. If the accident occurred in the manner testified to by him, there was little occasion for his saying’ that he was to blame for it. The testimony was admissible for this reason. [69] 5. Appeal and error : curing error [68] IV. Testimony was introduced by the plaintiff of alleged admissions made by the wife of the defendant. The substantial part of these admissions was that the defend [69] ant was inexpert in the handling of his car, and was driving it for the first time. The ° admission of this testimony was clearly improper. But it was specifically withdrawn by the court later, and the jury specifically instructed to disregard the same. We think this was a sufficient curing of the error. Appellant urges that the- poison had done its work before the evidence was withdrawn. But the evidence, at its worst, was not of a very venomous nature. The only damaging purported fact was that this was the first time defendant had driven his car. There was other appropriate testimony that tended to support the same fact. If such was not the fact, the defendant could readily have cured all erroneous impressions pertaining thereto, by a direct statement in his own behalf. Some other rulings on the admission of testimony are complained of, but we find none of them more meritorious than the foregoing. 6. Appeal and error : estoppel to allege error, Y. Fourteen specifications of error pertain to the instructions. The defendant presented eight requested instructions. The substance of several of these requested instructions was given by the court in its own instructions. The others were properly re- * fused. The instructions given by the court were, in the main, the usual form of instructions given in this class of cases. We find some complaint in the argument of the giving of Instruction 5 by the court. This instruction submitted to the jury the question whether the defendant was negligent in failing to sound his horn. The complaint is that that issue should not have been submitted at all. This is a departure in the argument from the exceptions made to the instruction. These exceptions objected to the generality of the instruction and its lack of specification. The defendant presented a requested instruction on this subject, which was a request "for the submission of such issue. The defendant cannot, [70] therefore, be permitted now to complain of the submission of the issue. r. appeal and error : erroneous submission of “last clear chance.” ' Instruction No. 6 submitted the question of last clear chance. We think the giving of this instruction was error, because there was nothing in the evidence which rendered the doctrine applicable. We reach the further conclusion, however, that the error could not have been prejudicial. The x w decisive fact question in the case was whether, as testified by the defendant, the plaintiff, while watching the approach of the defendant and the deflection of his vehicle to the left, stepped backward in front of him. If he did, there was no ground for charging negligence against the defendant. If he did not, there was no ground for charging negligence against the plaintiff. In order to find the defendant liable at all, the jury must have found that the plaintiff did not step backward in front of him. So finding, they must, accordingly, have found that his sole negligence caused the accident. On the other hand, if the plaintiff was guilty of contributory negligence, there was no cessation of his negligence up to the moment of the accident. The culmination of his negligence, if such, was the collision. The question of last clear chance was, therefore, immaterial and inapplicable. However, the giving of the instruction was clearly nonprejudicial to the defendant. It took nothing from his defense and added no weight to his load. The jury could not have found the defendant guilty of negligence without finding that it continued up to the moment of collision. Neither could it have found that the plaintiff was guilty of contributory negligence without finding that it continued up to the moment of collision. Nor could it have found that both parties were negligent. Under the evidence, the collision was clearly the result of the negligence of one, and not .of both. The jury having [71] solved the question of credibility in favor of the plaintiff, liability of the defendant was necessarily fixed. Complaint is also made of certain instructions bearing on the measure of damages. These are in quite usual form. The verdict of the jury was for $5,000. In the light of the evidence, it was in no sense excessive. On the contrary, if might more reasonably be deemed inadequate. Clearly, the defendant has not suffered on the question of measure of damages. Without dealing in further detail with the grounds urged for reversal, it is sufficient to say that our examination of the record, in the light of the argument, does not disclose prejudicial error. The judgment below is, therefore, — Affirmed. Preston, C. J., Ladd and Salinger, JJ., concur.