Sherry v. Asing

• Citation: 56 Haw. 135,531 P.2d 648
• Decision Date: 05 February 1975
• Docket Number: No. 5413,5413
• Parties: Douglas J. SHERRY, a minor, by his next friend Henry J. Sherry, et al., Plaintiffs-Appellants, v. Kathleen ASING, Defendant and Third-Party Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Third-Party Defendant-Appellee.
• Court: Supreme Court of Hawai'i

Page 648

531 P.2d 648

56 Haw. 135

Douglas J. SHERRY, a minor, by his next friend Henry J.

Sherry, et al., Plaintiffs-Appellants, v. Kathleen ASING, Defendant and Third-Party Plaintiff-Appellee, v. CITY AND COUNTY OF HONOLULU, Third-Party Defendant-Appellee.

No. 5413.

Supreme Court of Hawai'i.

Feb. 5, 1975.

Syllabus by the Court

1. The two-year statute of limitations in HRS § 662-4, applicable to claims against the state based on tort liability, is applicable to a tort claim against a municipal corporation, and supersedes the notice of claim provisions in HRS § 46-72 and section 12-111 of the charter of the City and County of Honolulu. A tort claim against the City and County of Honolulu is, therefore, valid even where the notice of claim was filed more than six months but within two years after the accident out of which the claim arose, and where the law suit was initiated within two years after such accident.

2. A driver must exercise a right of way in such a manner as to observe ordinary or due care to avoid colliding with other persons or vehicles on the highway.

3. Repetitious instructions should be avoided by striving to reduce the number of instructions given and to give a fair and complete single instruction on each issue. The refusal to give cumulative or repetitive instruction, setting forth the same principle of law in diverse language as that given in another instruction, is not reversible error, even though it correctly states the law. On the other hand, it is prejudicial error for the court to refuse to give an instruction required under the evidence which correctly states the law unless the point is adequately and fully covered by other instructions given by the court.

4. A police officer's testimony as to the safe speed on a particular road, under specified weather conditions is properly excluded, whether he is considered an expert or lay witness because such testimony is tantamount to answering one of the ultimate questions which the jury must decide, i. e., whether or not defendant-appellee's conduct was reasonable under the circumstances. The questions of negligence and of safe speed under carefully detailed road, weather and lighting conditions are of common rather than expert knowledge and as such not the subject of expert testimony. Furthermore, admission of opinion evidence is a matter largely within the discretion of the trial court, and only an abuse of that discretion can result in possible reversal.

5. In order not to mislead or to confuse the jury, the court may properly refuse to give instructions which employ the term due care when in the other instructions given by the court the term ordinary care is defined and used and there is no instruction which explains to the jury that due care and ordinary care are synonymous and interchangeable terms.

6. Where the record reveals no evidence that defendant-appellee had time to sound her horn, nor evidence that her vehicle did not have a horn in proper working order, and other instructions which were given adequately covered the subject of negligence, proposed instruction to the jury, consisting of quotation of a section of the municipal traffic code, in effect at the time, requiring the proper maintenance of an automobile horn in proper working order and the sounding of such horn when necessary to warn pedestrians crossing the road in the path of the vehicle, was properly refused.

7. Where defendant-appellee had testified that the headlights of her vehicle were on low beam just before and when the accident occurred and where defendant-appellee's spouse further testified to observing that the beam of the headlights of that vehicle went down and to the right when on low beam, illuminating the front of the vehicle for a distance of 10-20 feet, and where the testimony of defendant-appellee's spouse was inconclusive as to whether the observation was made shortly before or shortly after the accident, the condition of the headlights just prior to the accident was a question of fact for the jury to determine.

8. In the absence of eyewitness testimony, physical evidence, or both, to the contrary, a person who suffers from retrograde amnesia as a result of an accident is entitled to an instruction stating that he is rebuttably presumed to have been exercising ordinary care at the time of the accident. Under such circumstances he is not held to as high degree of proof as would be a plaintiff who could describe the events himself. However, when an eyewitness testifies fully to the events or physical evidence rebuts the presumption, or both, then the presumption is annulled and the question of whether or not the amnesia victim exercised ordinary care rests on proof, not presumption. In the latter situation, the plaintiffs-appellants are not entitled to instructions to the jury setting forth the presumption and explaining the evidentiary significance thereof.

9. A minor is held to a standard of care appropriate to his age, experience and mental capacity.

10. In a case involving a mentally slow minor, it would be inappropriate and potentially confusing to give the jury an instruction setting forth a general standard of care for mentally incapacitated persons which may apply to adults as well as to minors. While an instruction stating that the standard of care required of a minor is that appropriate to his age, experience and mental capacity should have been given, instructions requested by plaintiffs-appellants, which set forth the standard of care required of mentally incapacitated persons generally, and contained no specific reference to minors, were properly refused.

11. Where the plaintiff-appellant could not as a matter of law be deemed incapable of contributory negligence despite his minority, mental slowness, and retrograde amnesia, and the evidence raised such factual question, an instruction tantamount to a directed verdict in favor of plaintiff-appellant on the issue of contributory negligence was properly refused.

12. An instruction to the jury which stated that a mentally retarded person is not excepted from the standard of care required of persons of normal mental capacity was erroneously given in a case involving a mentally slow minor, because it was incompatible with the correct statement of the standard of care required of minors, which is that level of care appropriate to the age, experience and mental capacity of the minor.

13. The Uniform Table of Driver Stopping Distances and stopping distance charts of like nature are regarded as hearsay because they constitute printed testimony by experts who are unavailable for cross examination.

14. Where a jury using common sense and common knowledge, unaided by charts and tables, would have reached the same resolution of the factual issue, the plaintiffs-appellants were not prejudiced by the erroneous admission into evidence of the Uniform Table of Driver Stopping Distances.

Christopher P. McKenzie, Honolulu (Gould & McKenzie, Honolulu, of counsel), for plaintiffs-appellants.

David J. Dezzani, Honolulu (Gary Y. Shigemura, Honolulu, with him on the brief, Jenks, Kidwell, Goodsill & Anderson, Honolulu, of counsel), for defendant and third-party plaintiff-appellee.

Robert M. Rothwell, Deputy Corp. Counsel, Honolulu (Richard Sharpless, Corp. Counsel, Honolulu, of counsel), for third-party defendant-appellee.

Before RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and SODETANI, Circuit Judge, assigned by reason of vacancy.

OGATA, Justice.

Plaintiffs-appellants, Douglas J. Sherry, a minor, by his next friend Henry J. Sherry, and Henry J. Sherry and Marvelyn J. Sherry, individually, brought this action in the First Circuit Court to recover damages for injuries sustained by plaintiff-appellant Douglas J. Sherry, ¹ a mentally slow seventeen year old, and the son of plaintiffs-appellants Henry J. Sherry and Marvelyn J. Sherry, when he was struck by an automobile driven by defendant-appellee Kathleen L. Asing. ² After a trial before a jury a special verdict was returned finding no negligence on the part of the defendant-appellee. Plaintiffs-appellants appeal from the judgment entered upon such a verdict.

This automobile-pedestrian collision occurred before sunrise, at about 6:30 a. m. on January 28, 1971, on Keolu Drive, a six-lane roadway in Kailua, island of Oahu, approximately 105 feet north of its intersection with Akumu and Iana Streets. ³ Defendant-appellee was returning home from work when she was involved in this unfortunate accident. She had commenced working at Pan American Airlines as a dishwasher at 10:00 p. m. on January 27, 1971, and worked until the following morning when she punched out at 5:58 a. m. It was drizzling and still dark at the time she entered Keolu Drive. The street lighting along the portion of Keolu Drive north of Akumu and Iana Streets was of the dim incandescent type, although the opposite section of Keolu Drive was illuminated by bright mercury vapor lights.

Plaintiff-appellant Douglas Sherry could not testify to the events just prior to the accident, or to the way in which the accident occurred, because he sustained head injuries, was rendered unconscious for two or three days and suffered retrograde amnesia due to the accident. He did, however, testify to his habitual pattern when en route to school. He further testified that he had started out along his accustomed route to school the morning of the accident; that he almost always crossed Keolu Drive at the crosswalk. In a portion of his deposition which was read into the record he stated, however, '(W)ell, you see, if I did cross the street without on the crosswalk, if I cross the street I look way far, I look both ways far when I cross the street; but if I did cross the street the lady probably came fast. If I did jaywalk, if the car was way, way far I would go. If it was close, I wouldn't go, no way.'

Defendant-appellee was called as an adverse witness by the plaintiffs-appel...