Lestico v. Kuehner
| Decision Date | 16 December 1938 |
| Docket Number | 31,788 |
| Citation | 283 N.W. 122,204 Minn. 125 |
| Parties | A. C. LESTICO v. ALBERT H. KUEHNER |
| Court | Minnesota Supreme Court |
Action in the district court for Sibley county to recover damages for injuries sustained by plaintiff while a passenger in defendant's auto. The case was tried before Joseph J Moriarty, Judge, and a jury. After verdict of $9,000 for plaintiff, defendant appealed from an order denying his alternative motion for judgment or a new trial. Reversed and new trial granted.
Evidence -- burden of proof and extent thereof.
1. It is error to instruct that a statute creating a presumption of negligence shifts the burden of proof. The incidence of such statute is merely upon the burden of next producing evidence.
Evidence -- presumptions -- statement secured from injured person.
2. Statute making presumably fraudulent a statement secured from injured person within 30 days after the injuries were sustained does not render the statement inadmissible as evidence.
Evidence -- demonstrative -- object claimed to be cause of accident.
3. In laying foundation for receipt in evidence of object claimed to have been cause of accident, it is ordinarily enough that witness can identify such object.
Witness -- leading questions -- preliminary matters.
4. Leading questions are proper when the testimony sought is merely preliminary to matters in dispute.
Evidence -- opinion evidence -- conclusion as narration of fact.
5. Testimony of witness who has observed facts of which he speaks is not open to attack as a mere conclusion if in essence it is a narration of fact.
Evidence -- expert evidence -- opinion of auto mechanic.
6. Mechanic with "lots of experience with tires, due to wrecks," on which he was able to form an opinion whether air had suddenly or gradually escaped from an automobile tire, should have been permitted to state that opinion.
Automobile -- injury resulting from deflation of tire -- liability for "pure accident" -- instructions.
7. Where there was evidence that accident was due to sudden deflation of a tire which was almost new, jury should have been instructed that there is no liability for "pure accident."
Automobile -- injury resulting from deflation of tire -- liability -- instructions.
8. Where there is evidence that sudden deflation by puncture of an almost new tire was sole cause of accident (and no evidence of negligence in respect to tire), there should have been instruction that if the deflation was sole cause of accident owner-driver was not liable.
Costs -- on appeal -- disallowance -- disregard of court rules.
9. Because of disregard of rules of court, successful appellant will not be allowed statutory costs.
Joseph P. O'Hara, for appellant.
Everett L. Young and T. O. Streissguth, for respondent.
In this personal injury action the verdict went for plaintiff. defendant appeals from the order denying his motion for judgment notwithstanding or a new trial.
Very early in the morning of June 4, 1937, plaintiff and defendant left Gaylord in the latter's car en route to Alexandria. After having travelled something over 30 miles, the machine suddenly left the highway on the right side and overturned against the embankment. Plaintiff avers that his resulting injuries were proximately caused by the negligence of defendant in driving at an excessive speed and failing to have his car under control. Nothing more specific was charged by the complaint.
At the place of the accident the north and south highway was smoothly gravelled and the 20-foot roadway well compacted by travel. There was no loose gravel. There had been a sprinkle of rain during the night, but there is no evidence that defendant's car skidded. Some 270 feet south from where the vehicle left the road it is joined from the east by a town road. At or near that point there was a slight depression two or three inches deep and many more wide caused by water running across the highway from the intersecting road. When this point was reached defendant was traveling with his left wheels on or close to the median line. There was evidence from tracks, which witnesses said were made by defendant's machine, that immediately after this depression was crossed defendant's course was changed to the right. There is other evidence that he continued straight on until about 40 feet from the point where his machine left the road.
Defendant testified, in substance, that his car suddenly swerved to the right, and, when his right front wheel got into a low ridge of surfacing material (probably left by the blade of a grader), he lost control and could not get back onto the highway. Plaintiff stated frankly that the whole affair was at best a matter of a "split second."
The evidence would have justified the jury in believing that defendant was driving at more than 45 miles per hour. The estimates of plaintiff and defendant taken together (there were no other witnesses as to speed) range from 40 to 50 miles per hour. Defendant insisted that he checked his speed before coming to the shallow depression already referred to, which the witnesses characterized as a "washout." At best it appears to have been shallow in proportion to its width.
After the accident the tire of defendant's left rear wheel was found deflated, punctured by a No. 10 wood screw, which had gone through the casing perpendicularly, or nearly so, to the tread. It had torn a gash in the inner tube at least two inches long. Both car and tire were new, with only some 1,500 miles to their credit.
For the reasons now to be stated, we consider that the order appealed from must be reversed and the case remanded for a new trial.
1. The jury was instructed that under the statute, L. 1937, c. 464, § 28, 3 Mason Minn. St. 1938 Supp. § 2720-178 (), the maximum speed was 45 miles per hour. They were then charged that to exceed that creating a presumption of negligence. They were next told that such presumption was not conclusive, that it might be rebutted, but that the "burden then is upon the other party," defendant, to show that his actual speed was not negligent.
True, later on they were instructed that the burden of establishing defendant's negligence was upon plaintiff. But at best the charge concerning negligence generally and speed, plus the presumption from a rate more than 45 miles per hour, were contradictory and confusing.
It was error to instruct that the statute shifted to defendant any burden of proof. Speed greater than the statutory limit would give rise to a presumption of negligence. But it would not shift the burden of proof on the whole issue, as the jury were instructed it would. At most it could create for plaintiff only a prima facie case on that issue. The only burden so imposed upon defendant was that of going forward with the evidence, the burden of proof on the whole issue of negligence remaining with plaintiff.
The distinction between burden of proof of an issue and the very different onus of proceeding with evidence needs no further discussion. See McEleney v. Donovan, 119 Minn. 294, 138 N.W. 306; Presley Fruit Co. v. St. L.I.M. & S. Ry. Co. 130 Minn. 121, 153 N.W. 115; Piepho v. M. Sigbert-Awes Co. 152 Minn. 315, 188 N.W. 998; Boynton v. Simmons, 156 Minn. 144, 194, N.W. 330; 5 Wigmore, Evidence (1 ed.) §§ 2485-2489. 2. Excluded from evidence was a written statement concerning the accident, made by plaintiff to one Albrecht, within 30 days after the accident. It was considered incompetent under L. 1929, c. 289, § 4, 3 Mason Minn. St. 1938 Supp. § 5687-8, declaring that: "Any statement secured from an injured person at any time within 30 days after such injuries were sustained shall be presumably fraudulent for use in the trial of any action for damages for injuries sustained by such person or for the death of such person."
The statute does not make inadmissible as evidence any statement to which it applies. That is doubtless because of legislative reluctance to go so far into the judicial domain as to tell judges what documentary evidence is and what is not admissible in evidence. All the statute does is to create an initial presumption of fraud. By evidence it may be removed as to the whole statement (Swanson v. Swanson, 196 Minn. 298, 265 N.W. 39) or as to but a part of it. The presumption does not prevent evidentiary use of the writing. If it goes to the jury without proof of freedom from fraud, they take it subject to the presumption. If there is evidence both ways as to whether it speaks the truth or was honestly taken and transcribed, the jury should be told that it is for them to determine the character of the writing and to disregard it to the extent that they find it fraudulent, but to give it proper effect if they find it wholly genuine or bad in part only.
We can give the statute no other construction. It is to be construed so as to accomplish its purpose. But we think it would be going too far to say that the statement, if properly identified, is inadmissible for any purpose.
In this case not only was the writing itself held inadmissible, but also counsel for defense was not permitted to ask plaintiff, by way of attempted impeachment, whether he had made one of the statements appearing over his signature. That was error, as was also the exclusion of the document itself.
3. The punctured casing was offered in evidence. We do not attempt to estimate how much court time and taxpayers' money was squandered in effort to lay foundation for its admission....
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