Comins v. Scrivener

• Decision Date: 07 July 1954
• Docket Number: No. 4815.,4815.
• Parties: COMINS v. SCRIVENER.
• Court: U.S. Court of Appeals — Tenth Circuit

46 ALR 2d 1, 214 F.2d 810 (1954)

COMINS v. SCRIVENER.

No. 4815.

United States Court of Appeals, Tenth Circuit.

July 7, 1954.

Arthur E. Small, Jr., Denver, Colo. (McAtee & Toulouse, Albuquerque, New Mexico, Sol Cohen, Denver, Colo., were with him on the brief), for appellant.

William W. Gilbert, Santa Fe, New Mexico, (Carl H. Gilbert and L. C. White, Santa Fe, New Mexico, were with him on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

Jay Comins instituted this action against Robert Scrivener to recover damages for personal injuries sustained and expenses incurred as the result of a traffic accident which occurred on the highway between Santa Fe and Las Vegas, New Mexico. Each of the parties was driving his automobile on the highway, plaintiff going north and defendant south. The two automobiles collided and both parties suffered personal injuries. The court submitted to the jury the issues of primary negligence and contributory negligence. The issue of primary negligence submitted was whether as the defendant approached the crest of a hill, he crossed the center of the highway and went onto the left side thereof for the purpose of passing another automobile also going south and while on the wrong side of the highway his automobile and that of the plaintiff collided. The issue of contributory negligence submitted was whether plaintiff was traveling at a dangerous rate of speed, in excess of the maximum speed permitted by the law of the state. The jury returned a verdict for the defendant; judgment was entered upon the verdict; and the plaintiff appealed.

Error is assigned upon the admission of certain testimony given by the witness Schifani. The substance of the testimony was that the witness was traveling by automobile between Santa Fe and Las Vegas, going north; that he slowed down in order to pass around an automobile which had been stopped on the highway for the purpose of changing a tire; that while he was slowed down, plaintiff passed him; that at the time of such passing, plaintiff was traveling at a terrific rate of speed, estimated by the witness to be ninety miles per hour; that after passing around the stopped car, the witness picked up speed and traveled at about sixty miles per hour; that he next saw plaintiff's automobile when he came upon the scene of the accident; and that in his best judgment the distance from the point where plaintiff passed him to the point of the accident was three, five, or ten miles. It is argued that the testimony tending to show the speed of plaintiff's automobile at a remote distance from the place of the accident was wholly immaterial and prejudicial. It is the general rule that the question whether evidence shall be admitted tending to show the rate of speed of an automobile at a time and place other than that at the instant of or immediately prior to the accident depends upon the facts in the particular case and rests largely in the discretion of the trial court. Ries v. Cheyenne Cab & Transfer Co., 53 Wyo. 104, 79 P.2d 468; Hanson v. Schrick, 160 Or. 397, 85 P.2d 355; Pruitt v. Krovitz, 59 Cal.App.2d 666, 139 P.2d 992; Roushar v. Dixon, 231 Iowa 993, 2 N.W.2d 660; Prince v. Petersen, 144 Neb. 134, 12 N.W.2d 704; Walsh v. Murray, 315 Ill.App. 664, 43 N.E.2d 562; Smith v. Neibauer Bus Co., 328 Mass. 624, 105 N.E.2d 238; Slate v. Saul, 185 Va. 700, 40 S.E.2d 171. And the competency of such testimony does not always depend entirely upon specific distance or time but upon causal connection. Bryant v. Brown, 278 Mich. 686, 271 N.W. 566.

The testimony given by the witness Schifani did not merely show the speed at which plaintiff was traveling at a point three, five, or ten miles from the point of the accident. In addition, it showed circumstances from which the jury could reasonably infer that after plaintiff passed the witness he continued to travel at an excessive and dangerous rate of speed up to the point of the accident. It showed circumstances upon which the jury could reasonably predicate the deduction that plaintiff's dangerous rate of speed in excess of that permitted by the law of the state continued up to the point of the accident, otherwise the witness traveling at sixty miles per hour would not have fallen so far behind plaintiff that he did not see plaintiff's automobile again until he arrived at the scene of the accident. The testimony was admissible as tending to show the speed at which plaintiff was traveling when he passed the witness and also as tending to show circumstances from which it could be inferred that such speed continued up to the point of the accident. Dromey v. Inter State Motor Freight Service, 7 Cir., 121 F.2d 361; United States v. Uarte, 9 Cir., 175 F.2d 110; Tyrrell v. Goslant, 93 Vt. 63, 106 A. 585; Acme Poultry Corp. v. Melville, 188 Md. 365, 53 A.2d 1; Berryman v. Worthington, 240 Ky. 756, 43 S.W.2d 5; Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W.2d 242; Bennett v. Hardwell, 214 Miss. 390, 59 So.2d 82. And the testimony was admissible for another purpose. In addition to the testimony already outlined, the witness testified that as he approached the scene of the accident he saw a man in a pickup truck and that he directed the man to halt approaching traffic. The man in the pickup truck was a witness at the trial. He testified that he met plaintiff's automobile at a point about 100 to 150 feet south of the point of the accident; that plaintiff's automobile was traveling terrifically fast; that it was going at more than seventy miles per hour; that it may have been going at ninety miles per hour; that within a few seconds he heard a noise behind him which sounded like a blowout; that he looked back and saw that an accident had occurred; that he stopped and went back to the scene; and that he afterwards stopped approaching traffic. The testimony of the witness Schifani was admissible for the purpose of showing circumstances which tended to corroborate the testimony given by the driver of the pickup truck in respect to the speed of plaintiff's automobile when only 100 to 150 feet from the point of the accident. Ritchey v. Watson, 204 Cal. 387, 268 P. 345.

The next contention is that the court erred in permitting the witness Schifani to describe in detail the manner in which plaintiff passed him. The witness merely explained that a certain automobile was immediately in front of him; that both automobiles were traveling at about the same rate of speed; that the two automobiles approached an automobile which had been stopped on the highway for the purpose of changing a tire; that as the automobile immediately in front of the witness slowed down; the witness also reduced the speed of his automobile; that the automobile immediately in front of the witness went around the stopped automobile; and that as the witness started to pass around the stopped automobile, plaintiff passed him traveling at a speed estimated by the witness to be more than ninety miles per hour. The explanation of the witness did not inject into the case any secondary or subsidiary issue of a distracting or confusing nature, did not exceed appropriate limits, and did not constitute prejudicial error.

The action of the court in refusing a tender of proof made in the course of the redirect examination of a state policeman while testifying as a witness for plaintiff is challenged. The witness testified on direct examination that he arrived at the scene shortly after the accident occurred; that he made an...