We require a specific objection to offer the trial court the opportunity to correct the error. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 508, 429 P.2d 240 (1967). From this record it is apparent both the prosecution and the sentencing court were laboring on the false assumption the defendant was required to provide an accurate statement of his criminal history.
A trial court does not abuse its discretion by allowing a party to propose a hypothetical question based solely on that party's theory of the case or to include disputed facts. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 508-09, 429 P.2d 240 (1967); Levea v. G.A. Gray Corp., 17 Wn. App. 214, 221, 562 P.2d 1276 (1977). See Kuster v. Gould Nat'l Batteries, 71 Wn.2d 474, 482-83, 429 P.2d 220 (1967).
To constitute a comment on the evidence within Const. art. 4, ยง 16, "the jury must be able to infer from what the court said or did not say that he personally believed or disbelieved the testimony in question." State v. Browder, 61 Wn.2d 300, 302, 378 P.2d 295 (1963); see also Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 509, 429 P.2d 240 (1967). The second paragraph of instruction No. 4 comes perilously close to violating the constitutional ban.
We will not consider, as a ground for reversal of the trial court, a theory not presented at the time of trial. Matthias v. Lehn Fink Prods. Corp., 70 Wn.2d 541, 424 P.2d 284 (1967); Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967). [2] The court found the evidence was insufficient to show the freezing of water pipes on the premises which resulted in damage to appellants' goods was the result of negligence on the part of respojdents, or that respondents had prior notice of the defect.
We note that he totally failed to advise the trial court of any particular point of law involved. That being so, such points will not now be considered. Bellah v. Brown, 71 Wn.2d 603, 430 P.2d 542 (1967); Harrison v. A Bar A Ranch, Inc., 63 Wn.2d 592, 388 P.2d 531 (1964); Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967); Cowan v. Chicago, Milwaukee, St. P. Pac. R.R., 55 Wn.2d 615, 349 P.2d 218 (1960). Finally, it is contended that the plaintiff was entitled to a judgment notwithstanding the verdict under the doctrine of unjust enrichment.
In summary, although portions of Jahns' testimony were inadmissible and subject to a motion to strike, Metro's objections addressed his entire testimony, and consequently preserved for appeal only the failure to strike the testimony in its entirety. 5 K. Tegland, Wash. Prac. ยง 10, at 24 (2d ed. 1982); also cf. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967) (questions could not be raised on appeal where the defendant objected to the factual content of plaintiff's hypothetical question but did not advise the trial court of which facts the plaintiff had improperly included or omitted). We must also determine, however, whether Jahns' testimony was relevant evidence.
Under conditions of ice and snow, motorist [ sic] are charged with the duty to take care and caution in the operation of their vehicles proportionate to the known and obvious dangerous condition of the highway.[6] Szupkay did not object to the refusal to give that proposed instruction as required by CR 51(f). Accordingly, the alleged error will not be considered on appeal. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967). Furthermore, this instruction, which pinpointed a particular item of evidence, was not necessary because the instructions given stated this same law in general terms.
[6] Lastly, Dr. Lukens argues on appeal that the testimony of Mr. Algeo was inadmissible because the witness was not asked a proper hypothetical question. Counsel's objection at trial was couched in terms of goodwill in a professional practice having no value. The failure of counsel to object at trial on the basis that the hypothetical question was not properly based upon the facts of record precludes him from raising that issue on appeal. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967). The judgment is affirmed.
Opposing counsel may then cross-examine the expert and ask him whether his opinion would change if other facts were taken into consideration. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967); Wharton v. Department of Labor Indus., 61 Wn.2d 286, 378 P.2d 290 (1963); see 2 J. Wigmore, Evidence ยง 682 (3d ed. 1940). Whether a fact is disputed or undisputed, and whether the fact is material to the formulation of a fair, intelligent and sound opinion, is a preliminary question of admissibility for the court to rule upon.
Further, plaintiffs took no exceptions to the instructions regarding the issue of defendant's negligence. They cannot be heard to complain now. Spinelli v. Economy Stations, Inc., 71 Wn.2d 503, 429 P.2d 240 (1967); Sebers v. Curry, 73 Wn.2d 358, 438 P.2d 616 (1968). Third, plaintiff assigns error to the comprehensive instruction given to the jury governing rules of the road and prescribing the requirements of compliance with the traffic laws.