Strudl v. American Family Mut. Ins. Co., 75-1448
| Decision Date | 28 May 1976 |
| Docket Number | No. 75-1448,75-1448 |
| Citation | 536 F.2d 242 |
| Parties | 1 Fed. R. Evid. Serv. 1147 Frank STRUDL, Special Administrator of the Estate of Rose Strudl, Deceased, Appellant, v. AMERICAN FAMILY MUTUAL INSURANCE CO., a corporation, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Martin A. Cannon, Omaha, Neb., Matthews, Kelley, Cannon & Carpenter, Omaha, Neb., for appellant.
Robert D. Mullin, Omaha, Neb., Boland, Mullin & Walsh, Omaha, Neb., for appellee.
Before LAY, HEANEY and STEPHENSON, Circuit Judges.
This appeal from a jury verdict for the defendant in a wrongful death action arising out of an auto-pedestrian collision alleges that the trial court 1 erred in refusing to grant a new trial. Trial court errors urged in this appeal include: (1) admission of impeachment evidence without laying proper foundation therefor; (2) admission of evidence concerning the existence of a pedestrian walk light on the far side of the intersection, some 30 or 40 feet to the north of where plaintiff's decedent attempted to cross the roadway; (3) submission to the jury of allegation of negligence on the part of decedent upon which there was no proof; and (4) jury instructions with reference to the duty of plaintiff's decedent to use a pedestrian crossing, crosswalk, or intersection. We affirm.
This tragic accident occurred just after dark on November 21, 1971, when plaintiff's decedent, Mrs. Strudl, was attempting to cross 120th Street, Omaha, Nebraska, a two-line curbless asphalt roadway at or near its intersection with Valley Street. 120th Street runs north and south, Valley Street east and west terminating at its intersection with 120th Street. At the time of the collision Mrs. Strudl, who had approached the intersection from the east along the south side of Valley Street, had nearly crossed 120th when she was struck by an automobile driven by John Nelson 2 traveling south in the lane for southbound traffic in the west half of 120th Street. Plaintiff in his complaint alleged that decedent as a pedestrian was in the paved portion of 120th Street near the west edge thereof when she was struck by Nelson's vehicle. Plaintiff charged Nelson with excessive speed, improper lookout, lack of control, and failure to yield the right of way to decedent as grounds of negligence which were a proximate cause of the collision and resultant injuries. Defendant denied Nelson was negligent and charged that the proximate cause of the accident was the negligence or concurring negligence on the part of decedent which was more than slight and sufficient in law to bar recovery. Additional evidence with respect to the accident will be discussed in connection with the errors alleged.
Appellant contends that the court erred in admitting testimony of Officer Teuscher offered by appellee which impeached the testimony of appellant's witness Robena Langdon without laying a proper foundation. Appellant argues that under Nebraska law
(b)efore a witness, not a party to the suit, can be impeached by proof that he has made statements contradicting or differing from the testimony given by him upon the stand, a foundation must be laid by interrogating the witness himself as to whether he has ever made such statements.
Pierce v. State, 173 Neb. 319, 113 N.W.2d 333, 340 (1962), quoting from Meyers v. State, 112 Neb. 149, 198 N.W. 871, 872 (1924). See also Bartek v. Glasers Provisions Co., 160 Neb. 794, 71 N.W.2d 466 (1955). See generally Mattox v. United States, 156 U.S. 237, 244-48, 15 S.Ct. 337, 340-41, 39 L.Ed. 409, 411-412 (1895).
Appellee argues that appellant was not prejudiced by permitting the impeachment foundation to follow the testimony of the impeaching witness, rather than precede it. Here the witness Langdon was recalled by appellee and was present during the testimony of Officer Teuscher. She was then called by appellee and questioned with respect to the testimony of Officer Teuscher regarding statements made by her to the officer which were inconsistent with her testimony given during appellant's case in chief. We are satisfied that no prejudice has been shown. Mrs. Langdon was given a full opportunity to explain or deny her alleged inconsistent statements. See Hernandez v. State, 169 Tex.Cr.R. 418, 334 S.W.2d 299, 301 (1960).
We note that Federal Rule of Evidence 613(b) 3 provides
(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.
We observe that the notes of the advisory committee include the following:
The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence.
See discussion 3 J. Weinstein & M. Berger, Weinstein's Evidence P 613(02) (1975).
The trial court carefully instructed the jury that "The earlier contradictory statements are admissible, only to impeach the credibility of the witness, and not to establish the truth of these statements." We conclude no prejudice has been shown.
The evidence indicated that decedent walked west along the south side of Valley Street on the grass, there being no sidewalk along Valley at that time, until she reached Valley's intersection with 120th Street. She would then be at the southeast corner of the intersection. There was no marked crosswalk or pedestrian light for one going west and wishing to directly cross 120th Street from that point. There was a marked crosswalk from that corner north to the northeast corner of the intersection and from the northeast corner west across 120th Street to the northwest corner of the intersection. There was also in existence a pedestrian walk light which could be operated by pressing a button on either the northeast corner or the northwest corner of the intersection which, when operated, caused an overhead traffic light that was normally green to turn red and the pedestrian "don't walk" signal to change to "walk." The walk signals were at opposite ends of the marked crosswalk over 120th Street.
Appellant contended below that there was no duty on the part of decedent to go out of her way, travel north across Valley on a marked but uncontrolled crosswalk to utilize the marked and controlled crosswalk over 120th Street and that all testimony with reference to the pedestrian crosswalks and walk light was irrelevant and immaterial. In addition appellant requested the trial court to instruct the jury in part:
The presence of this light on the North side of the intersection did not require pedestrians on the South side of the intersection to use it. They were perfectly entitled to the...
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