Paro v. Farm and Ranch Fertilizer, Inc.

• Decision Date: 07 May 1993
• Docket Number: No. S-91-076,S-91-076
• Parties: Richard Allen PARO, Appellee and Cross-Appellant, v. FARM & RANCH FERTILIZER, INC., a Corporation, and Kerry W. Johnson, Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 535

499 N.W.2d 535

243 Neb. 390

Richard Allen PARO, Appellee and Cross-Appellant, v. FARM & RANCH FERTILIZER, INC., a Corporation, and Kerry W. Johnson, Appellants and Cross-Appellees.

No. S-91-076.

Supreme Court of Nebraska.

May 7, 1993.

Syllabus by the Court

1. Trial: Jurors. Jurors may be permitted to take notes if the parties agree that the jurors may take notes.

2. Rules of Evidence. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

3. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error.

4. Jury Instructions: Appeal and Error. Instructions are not erroneous if, when read together and taken as a whole, they correctly state the law, adequately cover the issues, and are not misleading.

5. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict, the evidence must be considered most favorably to the successful party, every controverted fact must be resolved in his favor, and he is entitled to the benefit of any inferences reasonably deducible from it.

6. Verdicts: Appeal and Error. A jury's verdict will not be disturbed unless it is clearly wrong.

7. Trial: Witnesses: Appeal and Error. The trial court is given discretion in determining whether or not a witness is qualified to state his opinion, and such determination will not be disturbed on appeal absent an abuse of discretion.

8. Motor Vehicles: Highways: Right-of-Way. A motorist traveling on a street or highway protected by stop signs of which he has knowledge may properly assume, until he has notice to the contrary, that a driver about to enter from the nonfavored street will come to a full stop, look both to the right and to the left, maintain a proper lookout for the safety of himself and others traveling on the streets, and yield the right-of-way to any vehicle which is approaching so closely on the favored highway as to constitute an immediate hazard if the motorist at the stop sign moves his vehicle into or across the intersection.

9. Attorneys at Law: Witnesses. An attorney should not assert his or her personal opinion as to the credibility of a witness when appearing in his or her professional capacity before a tribunal.

10. Trial: Attorneys at Law: Appeal and Error. The latitude allowed attorneys in argument during the trial of a case lies within the discretion of the trial court, and in the absence of prejudice resulting from misconduct in argument, that is no ground for reversal.

11. Juries: Appeal and Error. Although an invitation to jurors to put themselves in the place of a party is improper argument, it is not a ground for a reversal unless the jury was prejudicially affected by the remark.

12. Trial: Appeal and Error. The standard of review on a trial court's determination of a request for sanctions is whether the trial court abused its discretion.

Terrance O. Waite and Todd R. McWha, of Murphy, Pederson & Waite, North Platte, for appellants and cross-appellees.

John A. Wolf and Joel G. Lonowski, of Shamberg & Wolf, and David T. Schroeder, of Kelly & Schroeder, Grand Island, for appellee and cross-appellant.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH and LANPHIER, JJ.

BOSLAUGH, Justice.

This action arose out of a motor vehicle accident that occurred at about noon on December 22, 1987, at an intersection of county roads in Garden County, Nebraska.

The plaintiff, Richard Allen Paro, was driving his 1975 Chevrolet pickup truck in a southerly direction. The defendant Kerry W. Johnson was driving a 1975 Ford 2 1/2-ton truck owned by the defendant Farm & Ranch Fertilizer, Inc., in an easterly direction. The Farm & Ranch truck was loaded with fertilizer. Both roads were two-lane gravel roads, but the north-south road was protected by stop signs. It is undisputed that the Farm & Ranch truck did not stop at the stop sign before entering the intersection, but "rolled" through the intersection at about 5 miles per hour.

There is a hill north of the intersection, the crest of which is approximately 300 feet from the intersection. According to the plaintiff, when he reached the crest of the hill, he saw the Farm & Ranch truck approaching the intersection from the west. When the plaintiff was about 200 feet north of the intersection, it became apparent to him that the defendant Johnson was not going to stop at the stop sign, so the plaintiff applied his brakes in an effort to avoid the accident. At that time, the plaintiff was traveling at 45 or 50 miles per hour. The accident occurred when the front of the plaintiff's truck collided with the left rear portion of the Farm & Ranch truck. As a result of the collision, the plaintiff's truck was destroyed and the plaintiff sustained personal injuries to his leg, back, hands, and head. The plaintiff now has a 5-percent permanent impairment to his lower left leg.

The case was submitted to a jury, which returned a verdict for the plaintiff in the amount of $35,000. The defendants appeal and assign as error the trial court's (1) allowing testimony of the plaintiff and his wife regarding loss of consortium after the accident but before their marriage; (2) overruling the defendants' motion to permit note-taking by the jurors; (3) not admitting into evidence or allowing for impeachment purposes the "Claim for Benefits" form and other tendered portions of Department of Labor records; (4) not permitting a Department of Labor employee to testify; (5) giving instruction No. 18, since it did not mention contributory or comparative negligence; (6) giving both instructions Nos. 18 and 6, since they were conflicting; (7) not setting aside the jury's verdict, since it was excessive and not supported by sufficient evidence; (8) not allowing the testimony of lay witnesses regarding the speed of the plaintiff's vehicle; (9) denying the defendants' motion for sanctions, equitable relief, and taxation of costs for an earlier mistrial they claim was caused by the plaintiff; (10) failing to find the plaintiff guilty of contributory negligence; (11) overruling objections to counsel's expressions in his closing argument of personal beliefs as to credibility of witnesses and asking the jurors "to put [themselves] or their families" in the plaintiff's place; and (12) failing to grant the defendants' motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The plaintiff cross-appeals and assigns as error the trial court's denial of his motion for sanctions.

With respect to the defendants' first assignment of error, the evidence is that the plaintiff and his present wife were not married at the time of the accident. The petition did not request damages for loss of consortium, and the trial court did not instruct the jury concerning loss of consortium. Furthermore, the plaintiff's wife did not testify as to loss of consortium. On direct examination, the plaintiff's wife testified as to the plaintiff's condition following his injury, when his condition improved, and how long he was out of work.

The only objection by the defendants during her testimony was made after she was asked if she and her two boys depended upon the plaintiff prior to the accident for income and support. The plaintiff's wife responded affirmatively, and the defendants' objection was overruled.

The defendants were not prejudiced by this evidence, and because there was no request, no testimony, and no instruction concerning loss of consortium, the defendants' assignment of error is without merit.

Relying on State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990), the defendants claim that the trial court erred in denying their request that the jury be allowed to take notes. In State v. Kipf, this court held that jurors are permitted to take notes if the parties agree that the jurors may take notes and that such notes may be used during deliberations, but will be treated confidentially between the jurors and not preserved for review on appeal.

In the present case, since the parties did not agree as to the jurors' taking notes, the trial court did not err in denying the defendants' request.

The defendants' next two assignments of error relate to the trial court's refusal to admit into evidence a Claim for Benefits form from the Nebraska Department of Labor and other tendered Department of Labor documents as well as testimony by a Department of Labor employee. The defendants claim the exhibits and testimony were necessary to impeach the plaintiff's prior testimony that he was unable to work prior to April 1988.

The defendants were permitted to use the Claim for Benefits form during cross-examination of the plaintiff, but the trial court refused to admit it and the other Department of Labor records as well as testimony by its employee into evidence because their prejudicial effect was too great in light of their probative value.

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence. Brown v. Farmers Mut. Ins. Co., 237 Neb. 855, 468 N.W.2d 105 (1991); Neb.Rev.Stat. § 27-403 (Reissue 1989). A trial court's ruling concerning § 27-403 will not be disturbed on appeal unless there has been an abuse of discretion. Brown, supra.

Because the defendants were able to use the Claim for Benefits form during cross-examination of the plaintiff and because he admitted that he had stated to the Department of Labor that he was physically able to work since January 22, 1988, they were not prejudiced by the trial court's decision to exclude the exhibits and testimony from an employee of the Department of...