Erickson v. Northern Minn. Nat. Bank of Duluth
| Decision Date | 07 December 1951 |
| Docket Number | No. 35420,35420 |
| Parties | ERICKSON v. NORTHERN MINNESOTA NAT. BANK OF DULUTH. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Rulings of trial court excluding certain expert testimony offered by plaintiff Held sustained by record.
2. Under circumstances presented, denial of plaintiff's motion for a dismissal of his action without prejudice before he had rested his case in chief was not an abuse of discretion.
3. The granting to the jury of a view of premises is discretionary with the trial court. Denial of such a request in the instant case Held not an abuse of discretion.
4. Trial court's suppplemental instructions to jury considered in light of record and found to present no grounds for reversible error.
Smythe & Lindquist, Duluth, for appellant.
Nye, Montague, Sullivan, Atmore & McMillan and Richard H. Hastings, all of Duluth, for respondent.
Plaintiff appeals from a judgment for defendant entered in a personal injury action pursuant to the jury's verdict.
Plaintiff (George N. Erickson), his wife, and three children occupied, as tenants, one of the apartments in an apartment building owned and operated by defendant in the city of Duluth. The building is located at 316 East Second Street. The door a its main entrance is about 6 feet 9 inches high, 3 1/2 feet wide, and has a wooden frame 2 1/4 inches thick. There was a plate-glass panel in the door which extended from about knee height to within a few inches from the top of the door, a height of 53 inches. The glass panel was one-quarter of an inch thick and 30 inches wide, with the two top corners of the glass clipped off diagonally. The door opened from the inside. A largesized Corbin door control was attached to the door to regulate its opening and closing.
On July 27, 1949, plaintiff, his wife, and Mrs. Edith Carlson, another tenant of the building, were sitting just outside of the building on one of two low cement retention walls about six inches wide which extend about six or seven feet out from the building on either side of the main entrance doorway. Just inside the doorway and a few feet from where the Ericksons and Mrs. Carlson were sitting, two daughters of the Ericksons were playing with two other children. The main entrance door was latched open so that it would not close unless released. One of the playmentes of the Erickson girls released the latch which held the door open, and at that instant Barbara Erickson, plaintiff's three-year-old daughter, put her hand on the doorframe into which the door was about to close. Plaintiff, upon observing his daughter's peril, immediately arose from where he was seated and proceeded quickly to the doorway. He extended his right arm so as to prevent the door from closing on his daughter's hand. When his hand came in contact with the glass panel, the glass broke and the lower two-thirds of the panel came out of the door. Plaintiff went partially through the door, so that his body straddled the door with the upper half inside the door and the lower half remaining outside. As a result, plaintiff sustained cuts upon his right forearm, his knee, and other injuries.
The testimony for plaintiff at the trial was to the effect that the glass panel was loose in the door and that for some time prior to July 27, 1949, the Corbin control which hydraulically regulated the closing of the door had not been operating properly; that the door would close very repidly up to a point about six inches from the frame of the door, when it would stop abruptly, tremble, and then close slowly. However, the testimony in defendant's behalf was that this was a normal and proper action for a door of this size equipped with a Corbin control; that the wooden moldings which held the glass panel in the door were tight and secure; and that there was nothing defective with either the door or the door control at the time of plaintiff's injury.
The issues of negligence and contributory negligence were submitted to the jury. The jury returned a verdict in defendant's favor. Thereafter, plaintiff made a motion in the alternative for a dismissal of his action without prejudice or a new trial. Both motions were denied. At the trial plaintiff had moved for such a dismissal, but his motion was denied. On appeal, plaintiff has assigned as error a number of the court's rulings made at the trial.
1. One of the principal errors assigned is the exclusion of certain expert testimony offered by plaintiff in his case in chief.
John Rossberg, a building contractor, was called as an expert witness by plaintiff. His preliminary testimony disclosed that he had considerable experience in the repair of door controls, and that the evening prior to the trial he had examined the main entrance door to the building in question. Thereafter he was asked: 'Did you make a test as to how it works, how it functions?' Defendant objected to the question on the grounds of remoteness and lack of proper foundation. The objection was sustained, although the previous testimony of other witnesses had shown that the door closed in the same manner at the time of trial as it had during the latter part of July 1949. Plaintiff offered to prove by the witness that the control mechanism on the door was defective and that the door did not close properly. Since Rossberg's examination of the door was not made until about six months after the accident, and since no previous showing had been made that the door or the door control was in the same condition as just prior to plaintiff's injury, the trial court was of the opinion that the proof offered was too remote. At most, the reception of such proof was discretionary with the trial court, and it was not error to exclude the proffered testimony for remoteness. Cf. Kugling v. Williamson, 231 Minn. 135, 42 N.W.2d 534; Winters v. Minneapolis & St. L.R. Co., 131 Minn. 181, 154 N.W. 964. Moreover, Rossberg was later permitted to give his opinion of the cause of the door operating as it had during the latter part of July 1949, according to the preceding witnesses. He attributed the door's irregular movement in closing to a lack of proper hydraulic action in the Corbin control itself, and suggested the probability that the fluid within the control mechanism itself had leaked out. Since the more pertinent proof was later received in the form of opinion evidence from the witness, the ruling complained of would not constitute reversible error in any event.
Later, in his direct examination, Rossberg was shown plaintiff's exhibit A, a piece...
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