Opinion
No. 42360.
Filed October 23, 1979.
1. Evidence: Witnesses. The admissions by a party to an action upon a material matter are admissible against him as original evidence. 2. Courts: Instructions: Appeal and Error. The trial court is under a duty on its own motion to correctly instruct on the law and this court may take cognizance of plain error indicative of a probable miscarriage of justice.
Appeal from the District Court for Dakota County: FRANCIS J. KNEIFL, Judge. Reversed and remanded for a new trial.
Byron J. Brogan of Galvin Brogan, for appellant.
Smith, Smith Boyd, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This is an action for damages in the District Court for Dakota County as a result of a no-contact accident on May 9, 1976. The case was tried to a jury and the jury returned a verdict in favor of the defendant. The plaintiff appeals. We reverse and remand.
On the 9th day of May 1976, the plaintiff corporation, through its employee, Virgil Schroder, was operating a semitruck, without the trailer attached, southbound on U.S. Highway 77 south of Dakota City, Nebraska, traveling in the same direction as the defendant, Louis G. Engel. Both were following an unidentified slower-moving vehicle. According to the plaintiff's version of the accident, the plaintiff's truck had pulled into the passing lane and had drawn abreast of the defendant's car when the defendant suddenly accelerated and turned into the passing or northbound lane of highway 77, forcing the plaintiff to suddenly and violently apply his brakes. Plaintiff's driver ultimately lost control of the truck, the tires of his semitruck skidded, and the truck left the traveled portion of the highway and entered the east ditch where it overturned, causing substantial damage to the truck. The defendant's version was to the effect that he had pulled into the passing lane prior in time to the plaintiff's truck, and that he accelerated as the truck appeared to be gaining on him. The truck then appeared to apply its brakes, lose control, and go into the ditch.
There are four assignments of error, only one of which will be discussed in this opinion. The plaintiff-appellant asserts that the court erred in giving instruction No. 12: "You have heard testimony concerning statements allegedly made by a witness prior to this trial which may be inconsistent with his testimony at this trial. This testimony has been admitted solely for impeachment purposes to aid you in estimating the credibility of the witness and to determine the weight to be given to his testimony. You may consider it for that limited purpose only and not as evidence of the facts declared in the prior statement." (Emphasis supplied.)
The only out-of-court statements introduced by any party to the action were those of the defendant. In a statement given to State Patrolman Yosten at the scene, the defendant stated: "* * * he started to pass a vehicle and did not see the other vehicle already in the passing lane and at this time he did not have time to return to his lane of traffic and did observe the other vehicle go into the ditch." The witness, Jay Smith, testified that in a conversation with the defendant in response to the question, "How did the accident happen?", the defendant answered: "He had pulled out to pass the car that was in front of him and that as he looked up he didn't see anybody behind him, because apparently the truck was behind him in his blind spot." In a written statement of May 11, 1976, admitted into evidence, the defendant stated: "I was about four car lengths behind the car and ran up to about one car length and pulled out and got completely into the other lane. I was about 3/4 of the way or so out into the left lane when I saw a truck in my outside rearview mirror. He was in the left lane or nearly so and about 3-3 1/2 car lengths behind me. This was the first I even knew he was around."
The trial court excluded from evidence another statement of the defendant by a witness, Charles J. Raymond III, a passenger in the defendant's car. An offer of proof was made to the effect that: "Mr. Engel or the person who could be identified as the driver of this particular unit would testify he had stated he owed this truck driver his life * * *." Although not assigned as error, the statement of the defendant was obviously admissible. The admissions by a party to an action upon a material matter are admissible against him as original evidence. Scarborough v. Aeroservice, Inc., 155 Neb. 749, 53 N.W.2d 902.
The instruction given by the trial court did not allow the jury to consider as evidence the facts contained in the defendant's statements. Notably, his version of the accident varied from statement to statement. The error was plain and prejudicial to the plaintiff. It is true that plaintiff's counsel at the instruction conference did not object to the form of the instruction and merely requested the word "witnesses" be deleted and the word "defendant" be included. Plaintiff's counsel, unaware of the error in the court's instructions, may have invited the court to instruct wrongly. It is a rule that this court will not normally consider instructions not properly objected to and raised at a motion for new trial. Breiner v. Olson, 195 Neb. 120, 237 N.W.2d 118. However, the trial court is under a duty, on its own motion, to correctly instruct on the law and this court may take cognizance of plain error in instructions indicative of a probable miscarriage of justice. Barta v. Betzer, 190 Neb. 752, 212 N.W.2d 352; Nat. Bank of Commerce Trust Savings Assn. v. Mitchell, 203 Neb. 634, 279 N.W.2d 625. Since the plaintiff was prevented from having the jury consider declarations against interest of a party defendant, as evidence in favor of the plaintiff, the cause must be reversed and remanded for a new trial.
REVERSED AND REMANDED FOR A NEW TRIAL.