Opinion
No. 40189.
Filed April 1, 1976.
1. Trial: Instructions. A party may not complain that correct instructions are not sufficiently specific when no request is made for more specific instructions. 2. Trial: Evidence: Time: Statutes. This court will not, unless justice requires it, reverse a decision of the trial court refusing to apply legislative changes in rules of evidence, which changes were not law at the time of trial only because the effective date of the legislative act had not been reached. 3. Trial: Evidence: Damages. In an action where permanent, personal injury is claimed, the defendant may show as affecting damages that the plaintiff was a person of intemperate habits. 4. Trial: Evidence: Witnesses. A witness may testify as to the posted speed limit at a particular location if appropriate foundation is laid. 5. Trial: Evidence: Discovery. Under the provisions of section 27-612, R. S. Supp., 1975, a precondition to the production of and use by an adverse party of a witness' prior written statement is that the statement has been used by the witness to refresh his recollection. 6. Trial: Pleadings: Time. The courts may, in the furtherance of justice, either before or after judgment, permit the amendment of a pleading by conforming the pleading to the facts proved. 25-852, R.R.S. 1943.
Appeal from the District Court for Douglas County: JAMES P. O'BRIEN, Judge. Affirmed.
Warren C. Schrempp, Thomas G. McQuade, and Richard E. Shugrue of Schrempp, Dinsmore McQuade, for appellant.
Eugene P. Welch of Gross, Welch, Vinardi, Kauffman Day, for appellee.
Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
Plaintiff, Dennis Rawlings, appeals to this court from a verdict of the jury and judgment entered thereon in favor of the defendant, Abbie Andersen, in an action to recover damages for injuries sustained in a collision between his motorcycle and the defendant's Volkswagen automobile. The collision occurred at the intersection of Center and 40th Streets in the City of Omaha at about 4:15 p.m., on August 7, 1972. At the time of the collision the plaintiff was traveling east on Center Street. The defendant was coming from the east on Center Street and was about to make or was in the process of making a left-hand turn onto 40th Street. Center Street, at the accident scene, has four traffic lanes, two for eastbound and two for westbound traffic. West of 40th Street there is a cement median dividing the eastbound and westbound lanes. There is no cement median immediately east of 40th Street, but a median and left-turn lane are painted on the street's surface.
The trial court submitted to the jury: (1) Determination of the defendant's negligence based upon evidence of failure to maintain a proper lookout, failure to have her vehicle under proper control, and failure to yield the right-of-way to the defendant; and (2) plaintiff's contributory negligence based upon evidence of failure to maintain a proper lookout, failure to have his motorcycle under proper control, and excessive speed under the circumstances. The jury rendered a general verdict for the defendant.
On appeal to this court the plaintiff makes the following assignments of error: (1) The court erred in giving the jury instructions in conflict with the physical facts of the case, since those facts are sufficiently clear to eliminate the question of point of impact and to justify a finding that the defendant was, as a matter of law, executing a left turn at the time of the collision and was in the plaintiff's line of travel. (2) The court erred in refusing to allow a police division traffic investigator to testify as to the point of impact of the two vehicles. (3) The court erred in permitting testimony from the plaintiff's physician that 17 months prior to the accident the plaintiff had told his doctor that he was at that time consuming daily "a fifth of booze." (4) The court erred in permitting a witness to testify to the speed limit on Center Street at the point where the collision occurred. (5) The court erred in its refusal to require a witness at the taking of a pretrial discovery deposition to produce a statement used by the witness to refresh her recollection. (6) The court erred in refusing the plaintiff's request made at the end of trial to amend his petition to allege the defendant at the time of impact was on the wrong side of the street and in not giving an instruction with reference thereto.
We treat the assignments in the order we have listed them. At an instruction conference, counsel for the plaintiff, in response to a question from the court, said: "Just that we except to all Instructions in conflict with the physical facts of the case, which in this case we deem are sufficiently clear to eliminate the question of point of impact, and sufficiently clear and persuasive as to justify a finding that the defendant was, as a matter of fact, executing a left turn at the time of the collision and was in the plaintiff's line of travel." The following then occurred: "THE COURT: There is nothing in the Instructions where I have made any comment on that. The Court is confused with your objections here. If you can point out the Instructions that are incorrect, we will make the corrections, or at least consider your objections to the specific Instructions, but you haven't done so. MR. SCHREMPP: I can't point out a specific Instruction. THE COURT: That's just your general theory? MR. SCHREMPP: Right. THE COURT: The record will so note. If it is an objection, it is overruled." The plaintiff submitted no requested instruction on the point discussed.
The plaintiff's position apparently is that the physical evidence is so conclusive the court should have instructed the jury on its own motion that the collision occurred south of the centerline of Center Street. The evidence was clearly sufficient to permit the jury to so find and nothing in the instructions given would have prevented the jury from coming to such a conclusion. However, such a determination by the jury would not have been determinative of the litigation for the jury could also have found that the defendant was not negligent in making a left-hand turn at the time and place she did, and that the collision was caused by the plaintiff's contributory negligence more than slight. The plaintiff, to support his argument, relies upon the opinions of this court in Elwood v. Schlank, 126 Neb. 213, 252 N.W. 828: Miller v. Arends, 191 Neb. 494, 215 N.W.2d 891; and the dissent of Johnsen, J., in Ross v. Carroll, 138 Neb. 1, 291 N.W. 726. In all these cases the question which was determinative of liability was on which side of the roadway did the collision occur. In Miller v. Arends, supra, we said that where the undisputed physical facts demonstrate the collision out of which the injuries arose was not caused by the negligence of the defendant, the evidence will not support a verdict for the plaintiff. That principle is not applicable in this case. Here the fact that the collision may have occurred (and if this court were the original trier of fact we would say it probably did occur) south of the centerline was not conclusive of the defendant's negligence and certainly not conclusive of the absence of contributory negligence on the part of the plaintiff.
The defendant's evidence indicated that the defendant entered the left-turn lane east of the intersection with the intention of making a left turn onto 40th Street. She testified she had just begun the turn with perhaps her front wheels just south of the centerline when the plaintiff's motorcycle suddenly appeared weaving and at high speed from between eastbound cars. She stated she stopped her car and the collision occurred. The testimony of a motorist following the plaintiff tends to support this version. Other testimony and evidence would indicate that she was further into her turn with the front of her car pointed southwest and that the point of impact may have been at about the dividing line between the two eastbound traffic lanes and near the east edge of the intersection. Evidence tending to support that version comes from other witnesses and is reinforced by the presence of what the investigating officer stated was under-carriage dirt on the street located at about the dividing line between the eastbound lanes and a few feet east of the east line of the intersection. This debris is shown in some of the photographs received in evidence. When the collision occurred the plaintiff and his motorcycle flew in the air. The motorcycle broke into two parts, one part landing at the base of a tree immediately adjacent to and south of the sidewalk on the south side of Center Street, 46 feet east of the east line of 40th Street; and the second part coming to rest also at the south edge of the sidewalk, but somewhat west of the tree. The evidence does not show clearly where the plaintiff landed. Photos received in evidence would indicate that the motorcycle struck the front of the automobile at a point about a foot left of center of the bumper. Both vehicles were severely damaged. Defendant testified that her vehicle was driven backward by the collision. The plaintiff did not testify as to the collision because of amnesia. His last recollection was that he was headed toward the 40th Street intersection in the southernmost eastbound lane of traffic shortly before the collision occurred. There is no physical evidence to show the precise line of travel of the motorcycle immediately before the collision. It is evident that the direction of flight of the motorcycle after impact was dependent upon the relative position and line of travel of the two vehicles at impact. There is nothing in the nature of the physical damage to the Volkswagen from which these matters can be conclusively determined. This was a question for the jury to decide.
The instructions given by the court correctly informed the jury of the law applicable to the case. No attack is made on the correctness of these instructions. They did not preclude the jury from finding that the collision occurred south of the centerline and near the east edge of the intersection. If the plaintiff felt that he was entitled to a more specific instruction as to some undisputed fact shown by physical evidence, it was up to him to make such a request in writing. A party may not complain that correct instructions are not sufficiently specific when no request is made for more specific instructions. Thorpe v. Zwonechek, 177 Neb. 504, 129 N.W.2d 483; Dittrick v. Deuel, 181 Neb. 428, 149 N.W.2d 57. The plaintiff's first assignment is without merit.
During the course of the direct examination of the police officer who made the on-the-scene investigation of the collision, plaintiff laid a foundation to show that the officer's duties included automobile accident investigation and that he had examined the scene of about two such accidents daily for a period of 4 years. He was then asked if he had sufficient experience to determine the significance of debris at an accident scene. The officer answered in the affirmative. He was then asked: "What do you understand with respect to debris in connection with any significance in an accident investigation?" Objection was made and sustained. He was permitted to testify to the location of debris and its nature, viz: ". . . it was a substance similar to that found under the undercarriage of vehicles." He stated in response to a question that he did not know where it came from. He stated it was present when he arrived at the scene. He was not permitted to testify as to the time the deposit of debris was made nor to the position of the vehicles at the time of impact. He was not permitted to give his opinion as to where on the street the vehicles collided. Objections to questions designed to elicit the above information were made and sustained on the basis that they called for the conclusion of the witness and that sufficient and proper foundation had not been laid.
Heretofore we have held it has not ordinarily been permissible for an accident investigator to give his opinion as to the point of impact. Stillwell v. Schmoker, 175 Neb. 595, 122 N.W.2d 538; Caves v. Barnes, 178 Neb. 103, 132 N.W.2d 310. The reason usually given is that the witness may not give his opinion to the ultimate issue which is for determination by the jury. The plaintiff urges we apply sections 27-702, 27-703, and 27-704, R. S. Supp., 1975, which became law August 24, 1975. This case was tried previous to the effective date of the new evidence code. We ought not, unless justice requires it, reverse the decision of the trial court for following rules of evidence in effect at the time of trial even though legislative change then awaits only the effective date of the act. Justice does not require we do so in this case. We simply point out that, although the new rules abolish the "ultimate issue" rule, nonetheless under the provisions of section 27-702, R. S. Supp., 1975, the admissibility of such testimony depends upon whether the "specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." It is for the trial court to make the initial decision on whether the testimony will "assist" the trier of fact. The soundness of its determination, of course, depends upon the qualifications of the witness, the nature of the issue on which the opinion is sought, the foundation laid, and the particular facts of the case. Were we to say that section 27-702, R. S. Supp., 1975, is applicable, we would not be likely to disturb the discretion of the trial court in this instance. The plaintiff's second assignment is not meritorious.
The plaintiff suffered severe, permanent injuries as a result of the collision. Life expectancy tables were received for the purpose of assisting the jury in determining damages for such permanent injuries. During cross-examination of the plaintiff's physician the defendant's counsel sought to elicit information as to the plaintiff's previous habits which might affect his health and longevity. Questions concerning smoking habits were asked and answered. The following then occurred: "Q. Did he indicate to you a history with respect to the use of alcohol? A. Yes. Q. To the extent that that would affect his health? A. Probably." Counsel then asked the following question: "Would you tell us what he had indicated the amount of alcohol that he was using?" Objection was made and after the court determined by inquiry of defense counsel that his purpose was to determine plaintiff's "condition of health," the following occurred: "Q. Let me ask it this way as a matter of preliminary investigation: The amount of alcohol that he told you he consumed, one which if it was on a prolonged period of time would that affect his health?" After some discussion the doctor answered, "Yes." Then came the following: "Q. How much did he take at that time when he was consuming the alcohol?" Objection was made, "there being no showing and no claim by anyone that there was any influence of alcohol in connection with this accident." The court then overruled the objection and stated that the only basis was the "health problem." The doctor then answered as follows: "On January 12, 1971 in the History we had taken he told me that he was drinking a fifth of booze a day." The following colloquy then took place: "THE COURT: . . . he is trying to show the comparison of the health prior to the accident and after the accident. Is that what you are attempting to do? MR. WELCH: Yes, sir. It has no bearing upon the happening of the accident, merely upon his health. THE COURT: It is on that basis that the court is admitting this evidence and the jury is admonished to keep that in mind in their deliberations." In an action where permanent, personal injury is claimed, the defendant may show as affecting damages that the plaintiff was a person of intemperate habits. Century "21" Shows v. Owens, 400 F.2d 603; 9 A.L.R. 1406. Plaintiff's third assignment is not meritorious.
A motorist who witnessed the collision and who was traveling west on Center Street about 1/2 to 3/4 block from the collision site was permitted over objection to testify that he thought the speed limit at the scene of the accident was 35 miles per hour. Later in the trial an Omaha ordinance was received in evidence which provided among other things: ". . . nor in any case at a greater rate of speed than twenty-five miles per hour, except on street or streets where a greater rate of speed is permitted, as designated by signs installed along such street or streets." Objection to the witness' testimony was solely upon the ground that he should not be permitted to testify "what the law is." There was no objection on the basis of either insufficient foundation or that the testimony was not the best evidence. There was no error in admitting this testimony. A witness may testify as to the posted speed limit at a given location if an appropriate foundation is laid. The plaintiff's fourth assignment of error is not meritorious.
The plaintiff's fifth assignment relates to an order made by the trial court during the taking by the plaintiff of a pretrial discovery deposition of one of the defendant's listed witnesses, denying the production of a written statement previously made by the witness. This witness later testified at the trial. During the deposition the plaintiff's counsel asked the witness if her statement had been taken by anyone after the accident. It developed that she then had the statement in her possession. Plaintiff's counsel asked to see it. Objection was made and almost immediately a ruling was obtained from the same judge who later presided at trial. He denied production because there was no showing of good cause.
Plaintiff relies upon section 27-612, R. S. Supp., 1975, effective August 24, 1975. That section is in part as follows: Rule 612. Writing used to refresh memory. "If a witness uses a writing to refresh his memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness." This rule codifies in part previous law and in part enlarges previous rules. See Art. VI, Witnesses, p. 19 et seq., Nebraska Rules of Evidence, 1975, Nebraska Continuing Legal Education, Inc. This rule continues the former rule requiring that any writing used by a witness to refresh his recollection at a hearing must be produced for an adverse party. The rule adds to previous law by requiring, among other things, the production of any statement used by the witness to refresh his recollection previous to testifying and by permitting the adverse party to introduce the parts of the statement which relate to the testimony of the witness. Under the rule, however, a precondition to the production and use is the requirement that it has been used to refresh the witness' recollection. In this case the gist of the witness' testimony on the point of refreshment was that she just glanced at it. "What I looked at was the date." There is here no disagreement involving either the date of the accident, the witness' presence at the time, nor is the date of the taking of the statement relevant. Even if the changes in the law are to be applied before the effective date of the act, the rule is not applicable here because the witness had not refreshed her recollection by means of the statement. The trial court did not err in its ruling.
The last assignment relates to the trial court's refusal to permit the plaintiff at the end of trial to amend his petition to include an allegation that at the time of the collision the defendant was operating her vehicle on the wrong side of the street. The court gave as the reason for its ruling: "There is no evidence in the record that the defendant was operating her car on the wrong side of the street, under Nebraska law . . . . The evidence is that the defendant attempted to make a left turn at an intersection." In his brief the plaintiff states his contention as follows: "We contend that when an automobile `cuts a corner' on a left hand turn rather than going beyond the center point of the intersection, that automobile is operating on the wrong side of the street rather than simply failing to yield the right of way on a properly executed left hand turn." No eyewitness testified that the defendant was driving her car south of the centerline as she approached the intersection. All the direct testimony is to the contrary.
An eastbound motorist whose car was passed by the motorcycle at "about the second entrance where you come out of Kilpatrick's on the north side" (the record indicates that entrance is 192 feet west of the west line of 40th Street), and whose view of the collision was obstructed by a car or cars ahead of her own car, but who saw the motorcycle flying in the air, testified that moments later after the accident when she passed the collision site the Volkswagen was in the inner eastbound lane of traffic, facing directly west, and that the defendant then drove her car to the curb immediately after the witness' car had passed. The photographs indicate that the Volkswagen after the collision was facing directly south with its front wheels against the curb. The photos and testimony also indicate that the debris previously mentioned was directly north of the rear of the car and north of the dividing line between the two eastbound traffic lanes. Any inference from the foregoing that the defendant was driving her car in the lane of traffic south of the centerline before the collision was entirely too speculative to require a wrong side of the street instruction. The court did properly instruct the jury on the law applicable to the proper manner of making left-hand turns at intersections. All the evidence indicating negligence on the part of the defendant was before the jury. It was properly able to consider under the instructions given whether the defendant was negligent in cutting the corner, and whether such negligence, if any, was the proximate cause of the accident. The trial court did not abuse its discretion in refusing the request to amend made at the end of trial. The courts may, in the furtherance of justice, either before or after the judgment, permit the amendment of a pleading by conforming the pleading to the facts proved. 25-852, R.R.S. 1943. Justice did not require amendment in this case.
AFFIRMED.