Skinner v. Neubauer

• Decision Date: 27 January 1956
• Docket Number: No. 36739,36739
• Citation: 57 A.L.R.2d 1005,74 N.W.2d 656,246 Minn. 291
• Parties: , 57 A.L.R.2d 1005 Arthur SKINNER, Appellant, v. Alfred C. NEUBAUER et al., Respondents.
• Court: Minnesota Supreme Court

Page 656

74 N.W.2d 656

246 Minn. 291, 57 A.L.R.2d 1005

Arthur SKINNER, Appellant, v. Alfred C. NEUBAUER et al., Respondents.

No. 36739.

Supreme Court of Minnesota.

Jan. 27, 1956.

Syllabus by the Court.

1. Rule 43.02 of the Rules of Civil Procedure provides that a party may call an adverse party and interrogate him by leading questions and contradict and impeach him on material matters in all respects as if he had been called by the adverse party. While it appears from the record here that the trial court was unduly restrictive in its rulings as to the scope of the cross-examination under the statute which it allowed plaintiff, it was a matter of procedure, and, since it appears from the record that plaintiff was allowed full scope of cross-examination on all pertinent matters when defendant driver was called as a witness by defendants, there was no such violation of the substantive rights of plaintiff as to necessitate a new trial on that assignment of error.

2. The rule in this state permits a party who is surprised by the testimony of his witness to cross-examine and impeach the witness within the sound discretion of the trial court. To accomplish this purpose the party may show prior inconsistent statements of the witness. However, where the record shows that the inconsistencies between the testimony of the witness at the trial and his statements made in his deposition were minor with the exception of one instance, and in that case the principal discrepancy was whether the witness riding in the back seat of a cab first saw plaintiff when the cab was 50 feet from the intersection or some distance farther back, it is difficult to perceive under the record here how the discrepancy could have prejudiced plaintiff's case to such a material extent as to necessitate a new trial on that point.

3. M.S.A. § 546.15 provides that, upon retiring for deliberation, a jury may take with them all papers received in evidence Except depositions. It is error to allow depositions to be taken to the jury room if proper objection is made thereto. Held that, when it appears from the record that plaintiff made no objection to the depositions going to the jury room at the time the exhibits were delivered to the jury; that plaintiff apparently referred to the depositions in his closing argument; and that no mention of the error was made in plaintiff's motion for a new trial but it was raised for the first time on argument of the motion for a new trial, the error cannot be used as a basis for a new trial on appeal to this court.

4. Other assignments of error considered. The questions of defendants' negligence and the contributory negligence of plaintiff were submitted to the jury, and, under the record here, their decisions on those questions must be considered conclusive.

Henry Levine, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson and William T. Egan, O. C. Adamson II, and David W. Nord, Minneapolis, for respondents.

FRANK T. GALLAGHER, Justice.

Appeal from judgment of the district court for defendants.

Plaintiff alleges that defendants' taxicab was propelled in such a careless and negligent manner as to collide with him; that in the operation of the cab defendants failed to keep a proper lookout for the safety of others; that the cab was driven at an excessive and unlawful rate of speed; that it was not under proper control and failed to yield the right-of-way to a pedestrian; and that, as a direct and proximate result of defendants' negligence, plaintiff sustained injuries.

Defendants generally deny the allegations of plaintiff except as to the time and place of the accident and the ownership and operation of the taxicab, and they allege contributory negligence on the part of plaintiff.

The case arises out of a pedestrian-taxicab accident at the intersection of Fourth Street South and Second Avenue South in Minneapolis.

It appears from the record that plaintiff worked at the Eagles Club in Minneapolis until one o'clock on the morning of the accident. He testified that he was going to take a streetcar to his home; that when he got to the intersection of Fourth Street and Second Avenue he saw a green light; that he walked southerly about two-thirds of the distance across Fourth Street, where he was struck by the cab; and that he recalls nothing more until he awakened some hours later in a hospital. There was some discrepancy between his testimony at the trial brought out on cross-examination and his previous answers in a deposition taken by defendant as to what he had to drink during the evening in question, as well as the color of the light as he crossed the intersection.

Defendant Alfred C. Neubauer testified that on May 31, 1953, at approximately 1:30 a.m., he was driving the cab which, according to the complaint, was owned and operated by defendant Kenneth Rhodes doing business under the trade name of Blue & White Liberty Cab Company, which company also operates under the name of The Pioneer Holding Company. He further testified that at the time in question the cab was proceeding in an easterly direction down Fourth Street, a one-way street, with two passengers in the back seat. The witness stated that when he crossed Marquette Avenue, one block away, the semaphore lights at the intersection of Second Avenue and Fourth Street were 'red' for traffic proceeding down Fourth Street; that when he was about halfway between Marquette and Second Avenues the sign changed to green; that shortly after the light changed he saw plaintiff standing alone on the sidewalk on the northeast corner of the intersection, north of the curb line; that as he approached the intersection he saw plaintiff about halfway across it; and that the taxicab was then one or two car lengths from the west side of the intersection. He further testified that he blew the horn on the cab and slowed down to about 15 miles per hour and that plaintiff 'stopped, hesitated and stopped.' He said that he 'started up again' when he saw plaintiff stop and that when he was about halfway in the intersection with his cab he saw plaintiff moving again and that he thought the latter started moving even after the cab had entered the intersection. The witness claims that, after seeing plaintiff move again, he slowed down, put on his brakes, and turned the car a little to the right and that plaintiff walked right into the cab, 'bounced back and went around and fell down.' He said that plaintiff was in the east end of the crosswalk when the impact occurred. The witness also said that the cab was going slow and that it went only four or five feet after the impact.

The jury found for defendants, and plaintiff brings this appeal. Plaintiff raises several assignments of error, three of which we deem pertinent and therefore necessary to consider. They are that the trial court erred (1) in denying plaintiff the right to ask leading questions of defendant Neubauer when he was testifying as an adverse witness; (2) in denying plaintiff the right to ask leading questions of plaintiff's witness, William E. Brown, after plaintiff claimed surprise at Brown's testimony; and (3) in allowing the jury to take into the jury room the deposition of plaintiff taken by defendants.

1. At the opening of the trial plaintiff called defendant Neubauer to the stand as 'an adverse witness.' After some questioning of the witness, plaintiff began asking leading questions. Upon objection by defendants, the court called the attention of plaintiff to the fact that he had not called the witness for cross-examination 'under the statute' but had called him as an adverse witness. The court then permitted plaintiff to consider the witness as though he had been called under the statute and allowed plaintiff to continue. However, the court restricted the cross-examination and leading questions to things peculiarly within the knowledge of the witness and told plaintiff that he would have an opportunity to question the witness further when he was called as a witness for defendants.

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