240 F.2d 119 (10th Cir. 1956), 5419, Fleming v. Lawson

• Docket Nº: 5419.
• Citation: 240 F.2d 119
• Party Name: Robert E. FLEMING, Appellant, v. Albert L. LAWSON, Appellee.
• Case Date: December 28, 1956
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 119

240 F.2d 119 (10th Cir. 1956)

Robert E. FLEMING, Appellant,

v.

Albert L. LAWSON, Appellee.

No. 5419.

United States Court of Appeals, Tenth Circuit.

December 28, 1956

then claim prejudice from an unfavorable verdict.

Page 120

Ernest L. Newton, Lander, Wyo., and A. Joseph Williams, Cheyenne, Wyo., for appellant.

Edward E. Murane, Casper, Wyo., for appellee.

Before PHILLIPS, MURRAH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

This case arises as the result of an automobile accident occurring in Wyoming wherein appellee-plaintiff was injured while riding as a guest in a vehicle being driven by appellant-defendant. ¹ Jurisdiction being obtained through diversity and requisite amount the matter was tried by jury in the District of Wyoming and resulted in a judgment for plaintiff. Aggrieved, defendant perfects his appeal asserting error in the denial of his motion for a directed verdict, the admission of certain evidence, the form of the verdict and in the refusal of the trial court to instruct opposing counsel relative to testimony showing the existence of insurance. We review the contentions of defendant in that order.

At the conclusion of plaintiff's main case defendant moved for a dismissal of the cause upon the ground that the evidence showed as a matter of law that plaintiff had assumed the risk of riding with defendant, there being ample opportunity, counsel contended, for plaintiff to decline to ride with defendant after the latter's conduct and the concomitant risk were known to plaintiff. The motion was denied and defendant proceeded to offer evidence to support his version of the accident. Defendant did not renew his motion for a directed verdict at the conclusion of the case and chose to submit the matter to the jury.

This court, with many others, has held that a motion to dismiss or for directed verdict made by a defendant at the conclusion of plaintiff's main case is waived by proceeding to submit his evidence to the jury unless renewed at the close of the case. United States v. Alberty, 10 Cir., 63 F.2d 965; Home Ins. Co. of New York v. Davila, 1 Cir., 212 F.2d 731; Concordia Fire Ins. Co. of Milwaukee v. Commercial Bank, 8 Cir., 39 F.2d 826; Bogk v. Gassert, 149 U.S. 17, 13 S.Ct. 738, 37 L.Ed. 631. It follows that defendant is precluded

Page 121

from questioning on appeal the sufficiency of the evidence to support the verdict.

Defendant's second contention concerns admission of certain portions of the testimony of the witness Rager. The substance of this testimony was that the car being driven by defendant and in which plaintiff was riding passed the Rager vehicle while the latter was going 90 miles per hour at a point some 33 miles from the accident. ² Objection was based upon irrelevancy because of remoteness, it being admitted that defendant stopped for gas after first passing the Rager automobile.

The admission of evidence tending to show the rate of speed of a vehicle at a time and place other than the immediate proximity of the accident rests in the sound discretion of the trial court, Ries v. Cheyenne Cab & Transfer Co., 53 Wyo. 104, 79 P.2d 468; Comins v. Scrivener, 10 Cir.,214 F.2d 810, 46 A.L.R.2d 1. If the proffered evidence has more than a minimum probative value and is fit for consideration by the jury it is relevant and should be admitted unless undue prejudice is likely to arise from the consideration. It rests with the trial court to weigh these factors in light of the facts and circumstances of the case and the...