Hutteball v. Montgomery
| Decision Date | 02 September 1936 |
| Docket Number | 26108. |
| Parties | HUTTEBALL et ux. v. MONTGOMERY. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Clark County; George B. Simpson, Judge.
Action by Denny B. Hutteball and wife against O. B. Montgomery wherein defendant filed a cross-complaint. Judgment for plaintiffs, and defendant appeals.
Remanded with directions.
See also, 60 P.2d 80.
McMullen & Snider, of Vancouver (Milton R. Klepper, of Portland, Or of counsel), for appellant.
Hall & Schaefer, of Vancouver, for respondents.
This action was brought to recover damages for personal injuries and the loss of personal property caused by a collision between automobiles on a highway in Utah. There was a verdict for the plaintiffs, Denny B. Hutteball and wife, against the defendant, O. B. Montgomery. The defendant has appealed from a judgment on the verdict.
Respondents were going easterly, the appellant was going westerly. The collision occurred about 10 o'clock in the morning at a point where the road was level, 18 feet wide, and straight several miles each way. By a complaint on the part of the plaintiffs and a cross-complaint on the part of defendant, each charged the other with negligence, consisting of excessive speed and suddenly turning to the left of the center of the highway as the automobiles met, as the cause of the accident. There was a positive conflict in the evidence upon this point. The evidence was entirely sufficient to satisfy the jury that each car was being driven at 40 to 45 miles an hour, on its right-hand side of the road, until just about the time they met, at which time appellant's car suddenly swerved to its left beyond the center of the highway, making it impossible to avoid a collision. Both cars and certain personal property of the respondents were destroyed by the collision and by fire created by the collision. Appellant's wife and father were killed. All the parties to the present action were severely injured.
The first assignment on the appeal is that the court erred in denying appellant's motions to dismiss and for a directed verdict, for insufficient evidence to justify a verdict for the respondents. However, as already seen, the evidence was sufficient to take the case to the jury.
Assignments II and III relate to the rejection of testimony offered as to the estimated speed of respondents' car at several different points a number of miles from the scene of the accident, neither of the witnesses having seen either car until after the collision; and also the rejection of testimony offered as to the character of the country over which the respondents traveled the morning of and prior to the accident. The argument upon these two matters together on behalf of appellant is that the testimony rejected would have shown that respondents had driven 414 miles that morning in nine and one-half hours, a general average of 46 miles an hour, and that the first part of the morning's journey was through hilly country, where, presumably, they would not, or did not, drive as fast as later on, and that this, together with testimony offered of the estimated, excessively great speed of respondents' car later on, nearer the scene of the accident, would justify the jury in reasonably inferring that the respondents were driving in excess of 46 miles an hour at the time of the collision.
The testimony offered was entirely too uncertain and remote. The rejection of it did not constitute error, prejudicial or otherwise. On the question of remoteness, some discretion must be vested in the trial court, and its ruling should not be disturbed unless clearly wrong. Showers v. A. H. Jones Co., 126 Neb. 604, 253 N.W. 902. There was no abuse of discretion here. Appellant's authorities, including one furnished since the argument, have been examined, and without discussing them, we say that they do not, in our opinion, sustain the claim that the court committed error in the rejection of this testimony. Besides, how could the speed of respondents' car, whether 40 of 45 miles per hour, as admitted by them, or something over 46 miles an hour sought...
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...of trial judges to exclude for remoteness, see, e. g., Duvall v. Birden, 124 Conn. 43, 198 A. 255 (1938); Hutteball v. Montgomery, 187 Wash. 516, 60 P.2d 679 (1936), reversal with respect to the personal injury claim is not called for, even though a more liberal concept of relevancy would h......
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...for an affirmative instruction against recovery in that behalf, as in other cases of failure of proof.' See, also, Hutteball v. Montgomery, 1936, 187 Wash. 516, 60 P.2d 679, which holds that proof of payment of medical expenses is not enough, but that there must be proof of the reasonablene......
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...156, 499 P.2d 37 (1972). See also Davies v. Metropolitan Life Ins. Co., 198 Wash. 482, 488, 88 P.2d 829 (1939); Hutteball v. Montgomery, 187 Wash. 516, 60 P.2d 679 (1936). The trial court considered these factors and did not abuse its discretion in excluding the Next, appellant argues that ......
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