Opinion
Nov. 20, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
James Spelman and Deisch & Marion, P.C., Denver, for plaintiff-appellant.
Yegge, Hall & Evans, Eugene O. Daniels, Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Plaintiff brought suit to recover damages for personal injuries sustained in an automobile accident allegedly caused by defendant's negligence. Plaintiff appeals from a judgment entered on a verdict for defendant. We affirm.
Plaintiff first urges that the trial court erred in failing to grant plaintiff's motion for a directed verdict at the close of all the evidence. This contention is without merit since the material evidence presented at trial was in conflict. It was therefore proper for the trial court to submit the question of liability to the jury. See Randall v. Nasbarg, 28 Colo.App. 147, 470 P.2d 893.
Plaintiff also argues that the jury's verdict was contrary to the clear weight of the evidence, and that it was therefore error for the trial judge to deny plaintiff's motion for a new trial. Determination of a motion for new trial is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Barsch v. Hammond, 110 Colo. 441, 135 P.2d 519. The record discloses no abuse of discretion.
The main issue on appeal is whether the trial court erred in denying the request of plaintiff's counsel to ask leading questions of his own witness after claiming surprise at the witness's testimony. The statements of the witness dealt with the location of the plaintiff's automobile at the time of the accident, and are claimed to be at variance with information given to plaintiff's counsel before trial.
Before a party will be allowed to use cross-examination techniques with his own witness, even when the testimony is contrary to the party's reasonable expectation, it must appear that the party is taken by surprise, and a preliminary foundation of prior inconsistent statements must be established. Vigil v. People, 160 Colo. 201, 415 P.2d 863. Here, no offer of proof was made by plaintiff's counsel, and no preliminary foundation is contained in the record. The trial court specifically found that no sufficient showing of surprise was made by plaintiff's counsel during the trial or during the testimony of the witness. It is within the sound discretion of the trial court whether to permit a party to conduct a cross-examination of his own witness. Babcock v. People, 13 Colo. 515, 22 P. 817. There is nothing in the record to show that the trial court abused its discretion.
Judgment affirmed.
COYTE and RULAND, JJ., concur.