Hayward v. Yost

Decision Date03 April 1952
Docket NumberNos. 7789-7792,s. 7789-7792
PartiesHAYWARD v. YOST et al. (two cases).
CourtIdaho Supreme Court

W. W. Wander, Nampa, Smith & Ewing and Meek & Miller, all of Caldwell, for appellants.

Cleve Groome, Caldwell, for respondents.

THOMAS, Justice.

There are two companion cases growing out of an accident at Lincoln, California; in one action Joseph B. Hayward, Jr., a minor, by and through his guardian ad litem, Joseph B. Hayward, brought an action to recover damages in the sum of $40,000 for personal injuries sustained and alleged to have been occasioned by the negligence of Speer personally and as the agent and servant of The Boise Valley Livestock Commission Company, a partnership; the other action is by the father and mother of the minor, to recover $20,000 general damages for the injuries to their minor son, and $605 for medical and hospital expense, arising out of the same facts. The two cases, by order pursuant to stipulation, were consolidated for trial and were brought to this court by stipulation and order on a single transcript.

The members of the partnership at the time of the accident were R. L. Yost, George Slote and John W. Smeed; Smeed died and the trustees of his estate were made parties to the actions; before the case came to trial Slote died, and the Executrix of his will was by stipulation and order substituted as party defendant in his place and stead. As to the other parties defendant, a nonsuit was granted at the conclusion of plaintiffs' evidence.

The accident occurred at Lincoln, California, on May 31, 1949, when Joseph B. Hayward, Jr., then of the age of nearly seven, was going from school to his home at the noon recess; it occurred upon the public highway near the school grounds; this young boy was crossing the highway and was struck by a car operated by the defendant Speer; without attempting to detail the evidence adduced at the trial, it may be stated that there is sharp conflict as to the speed the car was traveling, such conflict ranging from 10 miles to 35 miles an hour in a restricted zone. Likewise, there is conflict as to whether the boy was within the pedestrian lane, and as to whether or not he paid any attention to the condition of the highway before he attempted to cross but, without further mention of the evidence in these various respects, suffice to say that as to negligence and contributory negligence it presents many sharp conflicts.

The jury returned a verdict for the minor in the sum of $10,000 and a verdict for the parents in the sum of $3,605, and judgments thereon were rendered. The appeals were taken from both judgments and from the respective orders denying nonsuit, directed verdict, judgment notwithstanding the verdict, mistrial, and new trial.

Many assignments of error were made which we will consider in the order set forth below.

It is urged by appellants that the court erred in denying appellants' motion for nonsuit, motion for directed verdict, and motion for judgment notwithstanding the verdict, on the ground and for the reason, among others, that the evidence does not establish negligence of the defendant Speer, but does establish contributory negligence of Joseph B. Hayward, Jr. The evidence in many material respects cannot be reconciled; a motion for nonsuit and for directed verdict, as well as a motion for judgment notwithstanding the verdict, admits the truth of the adversaries' evidence and every inference of fact which may be legitimately drawn therefrom. Stowers v. Union Pacific Ry. Co., Idaho, 237 P.2d 1041; Stearns v. Graves, 62 Idaho 312, 111 P.2d 822.

This court has consistently held that where the evidence on material facts is in conflict or where on undisputed facts reasonable and fair-minded men may differ as to the inferences and conclusions to be drawn therefrom, or where different conclusions might reasonably be reached by different minds, the question of negligence and contributory negligence, as well as proximate cause, is one of fact to be submitted to the jury and not a question of law for the court. Stowers v. Union Pacific Ry. Co., supra; Stearns v. Graves, supra. The court did not err in denying appellants' motion for nonsuit or for directed verdict or for judgment notwithstanding the verdict as against Speer.

Appellants urge that the court erred in the admission of respondents' Exhibit 'L'. The exhibit is a map prepared by the city engineer of Lincoln, California, and made from field notes of the engineer taken on the day of the accident and at the scene of the accident; the map depicted the physical facts as found by the engineer in the vincinity where the accident occurred; the map also depicted the location and distance of skid marks appearing on the pavement and which were delineated on the map; the engineer was not present at the time of the accident and had no personal knowledge that the skid marks depicted upon the map were in fact made by the car of Mr. Speer. However, the chief of police, who called him to the general area where the accident occurred, gave him general instructions to set forth all the physical facts as they appeared to him, and told him that the skid marks were those made by the car of Mr. Speer; the policeman also testified that Mr. Speer informed him soon after the accident that those were his skid marks. Such maps are competent evidence and admitted for the purpose of supplying a better understanding of the relative location of objects involved in the litigation, and are received in the discretion of the trial court for the purpose of illustration, to better aid the jury. Proper foundation was laid for the admission of such exhibit, and its admission was not erroneous. Kleinschmidt v. Scribner, 54 Idaho 185, 30 P.2d 362; Papesh v. Weber, 27 Idaho 557, 149 P. 1064; see also 22 C.J. Sec. 1114, p. 910, 32 C.J.S., Evidence, § 730.

Appellants assign as error improper remarks and arguments by counsel for respondents to the jury. The asserted remarks were not taken down by the court reporter and do not appear in the transcript of the proceedings otherwise than in the motion for mistrial dictated into the record after the jury had retired; the court minutes show that after counsel for respondents completed his closing arguments to the jury, counsel for appellants objected to the argument of counsel for respondents and moved the court for a mistrial, which motion was denied; that the court admonished the jury as to the facts and the jury retired to consider its verdict; the court minute further shows that thereafter and in the absence of the jury the defendants moved the court for a mistrial, which was denied (Tr. f. 1333); the minute entry does not reflect what remarks or arguments of counsel were objected to or the scope of such objection.

For a question of misconduct of counsel to be considered on appeal, the record must sufficiently set out the matters relating thereto and this court is limited to a review of such questions as are properly raised, preserved and submitted by sufficient record. 4 C.J.S., Appeal and Error, §§ 1167, 1206, pp. 1660, 1704. The case of Stewart v. City of Idaho Falls, 61 Idaho 471, 103 P.2d 697, relied upon by appellants, is not out of harmony with but supports this general proposition; in that case, but not here, there was presented in the reporter's transcript sufficient record of the remarks of counsel and objections thereto and ruling thereon, to invoke a ruling of the court.

The objection to the remarks by counsel, to be made available on appeal, should have been made at the time the remarks were made. Ohio & M. Ry. Co. v. Wrape, 4 Ind.App. 100, 30 N.E. 428; Symons v. Great Northern Ry. Co., 208 Minn. 240, 293 N.W. 303; Eilola v. Oliver Iron Mining Co., 201 Minn. 77, 275 N.W. 408. This means that ordinarily an objection comes too late for the purpose of review on appeal, if made for the first time after the jury has retired or the cause has been submitted to them, or after the close of the arguments, or on motion for new trial or otherwise, after the verdict has been rendered. 4 C.J.S., Appeal and Error, § 297(b), p. 594.

It is urged by appellants that improper remarks by counsel before the jury are preserved for consideration and are available on appeal where such remarks are brought into the record by affidavits attached to a motion for new trial, as was done here. Improper remarks of counsel in closing arguments to the jury are not available as a ground for reversal where such remarks are brought into the record only by affidavits executed in support of the motion for new trial. Duncan v. Vance Drilling Co., 191 Okl. 389, 130 P.2d 290; Westgate Oil Co. v. McAbee, 181 Okl. 487, 74 P.2d 1150; Enid Transfer & Storage Co. v. Fisher, 169 Okl. 484, 37 P.2d 825; City of Tulsa v. Horwitz, 151 Okl. 201, 3 P.2d 841; Phillips v. American Car & Foundry Co., Mo.App., 287 S.W. 810; Blankenship v. A. M. Hughes Paint & Glass Co., 154 Mo.App. 483, 135 S.W. 970; Mowry v. Norman, 223 Mo. 463, 122 S.W. 724; State v. Price, 186 Mo. 140, 84 S.W. 920; Feary v. Metropolitan Street Ry. Co., 162 Mo. 75, 62 S.W. 452; Norris v. Whyte, 158 Mo. 20, 57 S.W. 1037; Ellis v. Barkley, 160 Iowa 658, 142 N.W. 203.

Parties are bound by the record they make in the district court and there is nothing in our practice to justify the use of affidavits to establish facts which should have been made of record there, but were not. Carey v. Lafferty, 59 Idaho 578, 579, 86 P.2d 168.

On the record presented to this court the asserted error with reference to the improper remarks of counsel was not preserved for review by this court.

The appellants claim that the verdict in each case was excessive. The jury returned a verdict of $10,000 for the injuries to the boy; and a verdict of $3,605 to the partnets, which included $605 for hospital and doctor bills and other medical care.

The boy was near seven years of age at the time of the...

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