Spani v. Whitney, 35004
| Decision Date | 14 July 1961 |
| Docket Number | No. 35004,35004 |
| Citation | 172 Neb. 550,110 N.W.2d 103 |
| Parties | Thomas L. SPANI, Appellee, v. Alonozo C. WHITNEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The admission of evidence under the provisions of section 25-1215, R.R.S.1943, falls within the area reserved to the sound discretion of the trial court. The trial court must determine whether the evidence offered is on the same subject. Its ruling will not be regarded as erroneous unless there is a clear abuse of discretion.
2. If sufficient foundation is laid to show that the conditions they observed are the same as existed immediately following the accident, witnesses should be permitted to testify in regard to what they observed insofar as it is relevant and material to the issues involved.
3. Phrases used in section 39-7,110, R.R.S.1943, relate to the center of and right-hand and left-hand sides of the maintraveled portion of the highway available to traffic at the time.
4. A party cannot complain of the giving of an instruction in harmony with one which he requested.
5. One who at the close of a trial admits that there is evidence to establish an issuable fact in accord with a requested instruction cannot afterward be heard to say that there was no evidence received tending to prove that fact.
McGinley, Lane, Mueller & Shanahan, Ogallala, for appellant.
Charles E. Hughes, Imperial, Robert E. Roeder, North Platte, for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
In this action plaintiff seeks to recover personal injury and property damage from the defendant. Plaintiff alleged some ten different acts of negligence of the defendant as the cause of his damage. Defendant by answer denied generally and alleged contributory negligence sufficient to bar recovery. Defendant by cross-petition alleged negligence in four particulars and sought a recovery for personal injury and property damage.
The cause was tried to a jury resulting in a verdict and judgment for the plaintiff. Defendant appeals. We affirm the judgment of the trial court.
There is ample evidence in the record from which the jury could readily determine the following facts:
U. S. Highway No. 6 going east from Imperial goes through a practically level country for several miles. It is a black-top, two-lane highway with the usual center marking dividing two lanes of travel. The point here involved, the 'confusion' area, where the accident happened was visible 2 miles or more to the east and 2 miles or more to the west.
On the evening of August 11, 1958, about 8 p. m., a car caught fire about 4 miles east of Imperial and on the south side of the black-top, or on the black-top and the shoulder adjacent to it. An emergency unit and a firetruck went to the fire from Imperial. The emergency unit parked to the west of the burning vehicle. The firetruck, after stopping briefly at the side of the burning vehicle, was then moved to the east of the burning vehicle. Its hose was brought to the fire along the pavement.
The above three vehicles blocked a part of the traveled portion of the highway in what was the normal south or eastbound lane.
Other cars gathered behind the three principal vehicles, some in the borrow pit, and some on the north part of the highway or the westbound lane.
Some of the private cars had their lights on. The firetruck and emergency vehicle had their red lights and warning signals in operation.
Plaintiff coming from the west, driving his car, saw the 'confusion' and lights for a considerable distance. He slowed down and then was signaled to go on east by one of the emergency unit personnel. He did so. There was congestion on his side of the highway and in effect the pavement at that place had been reduced to a one-lane road. He proceeded east slowly, driving in part of the north lane, and just about opposite the burning vehicle the lights of the defendant's car flashed on. Plaintiff stopped and tried to back up, but the collision occurred before he could do so.
The defendant had come from the east. By his own testimony, he saw no lights or other indications of trouble on the highway until he was almost upon it. He justifies this by testimony that he was driving on his own side of the road at a speed of 45 miles per hour. When he saw the 'confusion' he undertook to stop but was unable to do so. Both cars were largely on the normal north driving lane, but also slightly across the center line when they came to rest a short distance apart.
Defendant's first assignment of error goes to this situation. Three days after the accident plaintiff voluntarily wrote out a statement of his version of the accident and gave it to the sheriff. In longhand it covered one and one-third pages of legal size paper.
In direct examination plaintiff testified:
On cross-examination defendant had the statement marked as exhibit 7, and asked plaintiff if he made this statement in the writing: "Upon arriving at congested area of which both sides of road was lined with cars and also noticed emergency wagon at west end and fire truck at east end of what turned out to be a burning car." Plaintiff said that he did.
Defendant then read him a part of a sentence in the statement and asked plaintiff if he made it. He said he did. The partial sentence was: "As I arrived at this point (almost directly beside the car) a car coming from the east appeared."
Defendant then asked if the plaintiff gave the sheriff no estimate of defendant's speed when he wrote up the statement. The plaintiff answered: This answer is, in effect, in the exhibit 7 writing.
Plaintiff offered the entire statement in evidence. Defendant objected and among other reasons stated: '* * * it is no item of contradiction.' With this statement the trial court was given no information as to why the statement was read, unless for hoped-for impeachment purposes. The exhibit was admitted.
Defendant argues here that the written statement was only admissible on the basis of being an impeachment statement and that the statement did not impeach. He claims that hearsay self-serving statements and conclusions were admitted.
Defendant, however, invited the introduction of the exhibit.
Section 25-1215, R.R.S.1943, provides:
The concluding sentence gives the reason for the rule. It requires no exposition on our part.
The rule is stated in 31 C.J.S. Evidence § 375, p. 1159, as follows: 'Where one party brings out part of a transaction, conversation, statement, writing, or course of conduct as an admission against interest, the other party may thereafter bring out the whole of it to offer his own explanation thereof and rebut its discrediting and damaging effect, even though proof otherwise incompetent is used.' See, also, 20 Am.Jur., Evidence, § 551, p. 463.
It has been suggested that the questions asked were directed to the matter of a possible impeachment, and no impeachment having occurred, the balance of the statement was not admissible and its admission erroneous. This argument would restrict the application of section 25-1215, R.R.S.1943, to impeachment matters only.
A cursory examination of our decisions shows that we have not so limited it.
We have not undertaken to define the broad outline of the meaning of the clause 'the same subject.' It has, however, been applied in a number of different situations. 'All the conversation on the same 'subject' that is, the fact of whether there was a contract or not, was what the plaintiff was entitled to call for not all the conversation as to plaintiff's claim.' Pettis v. Green River Asphalt Co., 71 Neb. 513, 99 N.W. 235, 101 N.W. 333.
In Struble v. Village of De Witt, 89 Neb. 726, 132 N.W. 124, it was held to permit the admission of the whole of a confidential communication between patient and physician.
In Roeder v. State, 119 Neb. 116, 227 N.W. 446, 448, the statute was held as authorizing the admission of a conversation between a sheriff and a third party. We held: 'Since the defendant, himself, first introduced evidence of a part of the conversation in question, the court properly ruled that the state was entitled to give the whole of the conversation on the same subject-matter.'
In Lindley v. Wabash Ry. Co., on rehearing, 120 Neb. 204, 233 N.W. 450, 451, the defendant brought out the matter of repairs to a platform alleged to have been dangerous. Defendant contended that subsequent repairs were not admissible as evidence of negligence. We held:
In Jensen v. Romigh, 133 Neb. 71, 274 N.W. 199, 203, letters touching upon a transaction were admitted in evidence. Plaintiff offered to prove the contents of other letters. We held: ...
To continue reading
Request your trial
-
State v. Schrein
...to admit explaining matter that otherwise might not have been admissible as hearsay, opinion, or the like. See Spani v. Whitney, 172 Neb. 550, 110 N.W.2d 103 (1961). Furthermore, although § 27-106 differs from Fed.R.Evid. 106, the drafters of the Nebraska rule believed that there was no sig......
-
State v. Coffman, 87-059
...this rule the admission of such evidence is not a matter of right, but rests with the sound discretion of the court. Spani v. Whitney, 172 Neb. 550, 110 N.W.2d 103 (1961). Given the circumstances of this case, it could not reasonably be said that the trial judge abused his discretion or tha......
-
State v. Manchester
...whole by the opponent. In his discretion a judge may require introduction of the remainder as fairness requires. See Spani v. Whitney, 172 Neb. 550, 110 N.W.2d 103 (1961) (predecessor Generally, the rule of completeness is concerned with the danger of admitting a statement out of context. M......
-
Marquardt v. Nehawka Farmers Co-op. Co.
...The admission of evidence under this section is within the area reserved to the sound discretion of the trial court. Spani v. Whitney, 172 Neb. 550, 110 N.W.2d 103. Plaintiff invited the introduction of the written statement and we can find no abuse of discretion by the trial court in deter......