Max GOODMAN and Anne Pearl Goodman, husband and wife, Appellants,
Sidney A. CARSON, Appellee.
[84 Ariz. 178] Moore & Romley, Anthony T. Deddens and Jarril F. Kaplan, Phoenix, for appellants.
Marvin Johnson, Phoenix, for appellee.
This is an appeal from a judgment in the sum of $29,000 in favor of Sidney A. Carson, appellee, hereinafter designated as plaintiff, and against Max, Goodman and Anne Pearl Goodman, his wife, appellants, hereinafter designated as defendants.
The facts are that in July 1953 plaintiff was in the employ of defendant Max Goodman and, at the request of Goodman, the plaintiff accompanied him on a business trip from Phoenix to Albuquerque. Goodman lives in Los Angeles and on his [84 Ariz. 179] way to Albuquerque picked plaintiff up at Phoenix. They went to Albuquerque in defendants' Cadillac automobile. After concluding their business in Albuquerque on July 13 they left Albuquerque around 5:30 p. m. for Phoenix via Belen, Socorro and Springerville. Shortly after midnight on July 14 they had reached a point some 12 or 13 miles east of Springerville when they met an automobile and trailer on or at the end of a curve in the road. The road at that point was approximately 25 or 30 feet in
width having a narrow two-lane pavement thereon. The eastbound car with a house trailer attached was occupying a part of the north half of the paved portion of the road and the trailer attached thereto was weaving. As the two cars approached each other defendant pulled to the right and his right wheels ran onto the north shoulder of the highway consisting of volcanic cinders causing said wheels to sink into the cinders. It continued upon this shoulder for a distance of 150 feet. Defendant was attempting all the time to get it back on the pavement but when he succeeded in doing so it skidded diagonally across the road and into an arroyo 60 to 80 feet below the level of the highway. Both plaintiff and defendant were injured. We are in no way concerned with the evidence in this case except as to its admissibility. It is upon this issue alone that this decision will rest.
In their appeal from the above judgment defendants have assigned several errors which we will consider in the order presented. First, it is claimed that the trial court erred in admitting, over the objection of defendants, the testimony of plaintiff that: (a) the defendant Goodman could not have stopped his car when the other car came towards him even if he had put on his brakes, and (b) there was no peril of being struck by the oncoming car even if Goodman had kept going straight ahead. "The general rule of law is that witnesses must state facts within their knowledge, and not give their opinions of their inferences. * * *" Lee Moor Contracting Co. v. Blanton, 49 Ariz. 130, at page 143, 65 P.2d 35, at page 41. Buehman v. Smelker, 50 Ariz. 18, 68 P.2d 946, dealt with practically the identical questions here involved and held them to be improperly admitted in that case. We therefore hold that it was error to admit the above testimony over defendants' objection.
Assignment No. I under subdivision (c) thereof also claims it was error to permit plaintiff to testify concerning the speed defendants' car was traveling at the time of the accident. This testimony was based exclusively upon experiments made by plaintiff and his attorney shortly before the trial. Plaintiff had [84 Ariz. 180] testified shortly after the accident that Goodman was going about 50 miles per hour at the time of the accident. The testimony elicited from plaintiff at the trial was to the effect that the speed of defendants' car at the time of the accident 'had to be better than 65 miles per hour.' Such testimony was especially prejudicial for the reason that it was based upon an experiment made by plaintiff and his attorney more than two and one-half years after the accident under conditions entirely dissimilar to those existing when the accident occurred. The cars were different. There was no evidence as to the condition of the brakes on the two cars. The accident occurred in the summer time. At the time of the accident there were soft shoulders along the north side of the road consisting of volcanic cinders. When the experiment was made it was winter; snow was on the ground; the ground was frozen and the shoulders were hard. Furthermore, plaintiff did not qualify as an expert to give such testimony.
We have repeatedly held that testimony based upon experiment is not admissible unless the conditions under which the experiments were conducted are shown to be substantially the same as those existing at the time the accident occurred and which conditions it is claimed caused such accident, and upon which the action of negligence is based. Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 305, 263 P.2d 799, 805; Ong v. Pacific Finance Corp., 70 Ariz, 426, 428, 222 P.2d 801, 803; Broderick v. Coppinger, 40 Ariz. 524, 527, 14 P.2d 714, 715. It is also the law that in order to justify the admission of such evidence the witness must be shown to be an expert upon the subject about which he is called to testify. 20 Am.Jur., Evidence, §§ 783 and 784; 32 C.J.S. Evidence § 589. Plaintiff was not shown to be expert upon the subject about which
he testified. The admission of such evidence was prejudicial and constituted reversible error. Assignment No. II has been thoroughly discussed above.
Considering next Assignment No. III, we are of the view that counsel for plaintiff went beyond the bounds of propriety, both in assuming in his question that defendants' negligence caused plaintiff's injuries, and in his response to defendants' objection thereto in again asserting that they were in court because defendant was negligent. The court instructed the jury to disregard counsel's remarks. Inasmuch as this case must reversed as above indicated it is unnecessary to decide whether counsel's conduct constituted reversible error. We would suggest that such assertions should be avoided at all times for the reason that no one can say what effect it had upon the jury or whether the instruction of the court removed any wrong impression it may have created.
[84 Ariz. 181] Assignment No. IV charges that counsel for plaintiff was guilty of misconduct in his argument to the jury. While we agree it was misconduct, inasmuch as no objections to counsel's conduct were interposed before the court submitted the case to the jury, we will follow our unbroken rule that where no objection is made in the trial court, we will not consider such assignment on appeal. Counsel for defendants argues, however, that the question was submitted to the trial court in supporting affidavits to defendants' motion for a new trial; that the trial court had an opportunity to, and did, rule upon it; and that, therefore, it is properly a part of the record on appeal and subject to our consideration. Defendants cite no authority in support of this proposition, and we have not met with success in our search for such authority. Therefore, since it is unnecessary to a decision in this case, the court reserves ruling thereon.
Assignments V and VI charge error of the trial court in denying defendants' motion for a new trial. It is clear beyond the peradventure of a doubt that the court erred in denying defendants' motion for a new trial upon the ground that it admitted evidence that we have hereinabove declared to constitute reversible error. The further ground assigned that the verdict was excessive and influenced by passion and prejudice is no longer material since the case is being reversed and remanded for a new trial.
Judgment reversed and remanded for a new trial.
UDALL, C. J., and WINDES and JOHNSON, JJ., concurring.
STRUCKMEYER, Justice (dissenting).
There is ample evidence from which the jury could find that the defendant's neglect was the proximate cause of the accident and injuries to the plaintiff. The road being traveled by the plaintiff and the defendant was in poor condition and undergoing repairs at various places. The plaintiff had several times requested the defendant to slow down. Just prior to the accident the defendant was driving between 60 and 80 miles an hour. The eastbound car with its house trailer attached was observed by the plaintiff some 1,800 feet in advance of the point of meeting. Nevertheless, the defendant did not reduce his speed when attempting to pass the eastbound vehicle. The defendant applied his brakes only after turning onto the shoulder, then in turning back onto the paved portion of the road, either hit a chuckhole or the edge of the pavement and lost control of the car.
The foregoing facts, while disputed, are consistent with the announced rule of this court that on appeal the evidence will be taken in the light most favorable to sustaining[84 Ariz. 182] the verdict and judgment. Bryan v. Southern Pacific Company, 79 Ariz. 253, 286 P.2d 761, 50 A.L.R.2d 1; Rivera v. Hancock, 79 Ariz. 199');"> 79 Ariz. 199, 286 P.2d 199; Sanders v. Beckwith, 79 Ariz. 67, 283 P.2d 235.
The majority of this court rely on certain errors in the introduction of evidence
for reversal of this case. The first two involve the application of the opinion rule, being respectively (a) whether defendant could have stopped his car when the other car came toward him, and (b) whether the defendant's car was in peril of being struck if it had gone straight ahead.
It should be noticed that the opinion rule has been the subject of considerable criticism. The outstanding authority in the field of evidence has this to say:
'The Opinion rule day by day exhibits its unpractical sublety and its useless refinement of logic. Under this rule we accomplish little by enforcing it, and we should do no harm if we dispensed with it. We accomplish little, because, from the side on which the witness appears and from the form of the question, his answer, i. e. his opinion, may often be inferred. We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination. Add to this that, under the present illiberal application of the rule, and the practice as to new trials, a single erroneous ruling upon the single trifling answer of one witness out of a dozen or more in a trial occupying a day may overturn the whole result and cause a double expense of time, money, and effort; and we perceive the absurdly unjust effects of the rule. Add, finally, the utter impossibility of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling.' 7 Wigmore, 3d Ed. pages 26 and 27, section 1929. [Italics mine.]
The foregoing statement is particularly applicable to this case because the data upon which the opinions were founded were wholly before the jury.
In the first instance the exact question asked was:
'Q. Was Mr. Goodman's car able to stop if, when this car came toward him, he had put on his brakes? A. No, sir.
'Mr. Kaplan: Object to that as calling for a conclusion, Your Honor.
[84 Ariz. 183] 'The Court: The answer may stand.'
The defendant thereafter testified on cross-examination:
'A. When I first saw the car and the trailer, it seemed to me it was approximately about 200 feet. It could have been more or less.
'Q. And it was swaying at that time, sir? A. I didn't notice it at that particular moment. As we were both traveling, it was coming towards me and I was going towards it, probably between 75 or 80 feet is when I noticed it was over on my side of the highway, and the trailer was weaving.
'Q. It was coming towards you and you were coming towards it, is that right, sir? A. Yes.
'Q. And you were going at about 55 or 60, you said, is that correct, sir? A. I did not say that.
'Q. Well, how far do you say, sir?
'Mr. Kaplan: What?
'Mr. Johnson: I mean how fast do not say. Excuse me.
'The Witness: I would say I was going between 35 or 40 miles an hour, maybe 45.'
It thus appears by the defendant's own testimony that when the two cars were 75 or 80 feet apart, the eastbound car came into the defendant's line of traffic. The opinion of the plaintiff that the defendant's car could not have been stopped
was so obviously correct that the jury could not have been misled thereby.
Indeed, were it possible to conclude that the jury could have been misled into believing what was manifestly true, there is still no possible interpretation of the answer which would prejudice the defendant. Nothing can be clearer than this: that if the approaching car entered into the defendant's line of traffic and as the plaintiff says, they could not have stopped, the defendant was justified in turning off the paved portion of the highway, for the alternative was a head-on collision.
The second statement of the plaintiff that there was no peril of being struck by the oncoming car if defendant had kept going straight ahead is, in my opinion, an even more fanciful ground for reversal than the first. The incident to which error is assigned arose in this manner.
'Q. Mr. Carson, or Sidney, were you at anytime or was Mr. Goodmam at anytime in peril of being struck by this car if he had kept going straight?
'Mr. Kaplan: Object to that as calling for a conclusion, also, ...