Turner v. Willis

• Decision Date: 17 July 1978
• Docket Number: No. 6186,6186
• Citation: 59 Haw. 319,582 P.2d 710
• Parties: Lawrance TURNER and Ursula Turner, Plaintiffs-Appellees, v. Rodney K. WILLIS, Sr., Hawaiian Reinforcing Steel Co., Ltd., and John Does 1 to 10, Defendants-Appellants.
• Court: Hawaii Supreme Court

Page 710

582 P.2d 710

59 Haw. 319

Lawrance TURNER and Ursula Turner, Plaintiffs-Appellees, v. Rodney K. WILLIS, Sr., Hawaiian Reinforcing Steel Co., Ltd., and John Does 1 to 10, Defendants-Appellants.

No. 6186.

Supreme Court of Hawai'i.

July 17, 1978.

Syllabus by the Court

1. Failure of a party to adequately state at trial his objections to a jury instruction does not prevent an appellate court from taking cognizance of the erroneous instruction if the error is plain and may result in a miscarriage of justice.

2. The doctrine of res ipsa loquitur is merely procedural and is not a rule of substantive law, and its effect is merely to raise a rebuttable inference of negligence so as to allow a plaintiff to get his case to the jury.

3. It is well-settled in this jurisdiction that an instruction covering the doctrine of res ipsa loquitur should permit, but not compel, an inference of negligence.

4. It is also well-established that the doctrine of res ipsa loquitur has no application to proximate cause.

5. Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial.

6. Bearing in mind the possible discouragement which excessive costs of litigation may pose to the bringing of otherwise meritorious lawsuits, trial courts are advised to exercise restraint in taxing as costs the travel expenses of out-of-state witnesses beyond the amounts specifically allowed by HRS § 607-12 (1976 Repl.); litigants are also admonished to inform the trial court prior to trial of the need for testimony from out-of-state witnesses so as to allow the trial court to assess the necessariness of the testimony and the possibility of obtaining that testimony through less expensive alternate means.

7. Trial courts are also advised to exercise restraint in taxing as costs witness subsistence expenses in amounts greater than those allowed by HRS § 607-12 (1976 Repl.).

8. Under HRS § 607-12 (1976 Repl.), when a witness is subpoenaed but does not testify at trial, that witness will be entitled to witness fees and expenses only if he or she actually attended the trial.

9. Travel and subsistence expenses incurred by counsel in taking depositions are not recoverable as costs.

10. When, upon a proper request and showing, counsel could have had the use of the filed originals of depositions, and his purchase of copies of such depositions was thus not necessary but was merely for his convenience, the expense of those copies is not taxable as costs.

John D. Thomas, Jr., Honolulu (Michael F. McCarthy, Honolulu, with him on briefs; Hamilton, Gibson, Nickelsen, Rush & Moore, Honolulu, of counsel), for defendants-appellants.

Richard T. Kaneko, Honolulu (Wilfred H. C. Youth, Honolulu, with him on brief; Ikazaki, Devens, Lo, Youth & Nakano, Honolulu, of counsel), for plaintiffs-appellees.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

This is an appeal from a judgment entered pursuant to a jury verdict returned in favor of plaintiffs-appellees (hereinafter appellees) in a personal injury action. We conclude that the judgment must be reversed and the cause remanded for new trial.

In their complaint, appellees alleged that appellant Rodney K. Willis negligently operated and/or negligently maintained a motor vehicle so that a pipe which protruded from the side of the motor vehicle struck and injured appellee Ursula Turner. The evidence adduced at trial indicated that on the morning of June 7, 1972, Ursula Turner and her husband, appellee Lawrance Turner, were walking along Kuakini Highway ("Old Kona Airport Road") near the Palani Road junction in Kailua-Kona, County of Hawaii. The weather on that day was clear and sunny. As appellees walked along a curved portion of the highway, a pickup truck owned by appellant Hawaiian Reinforcing Steel Co., Ltd., ¹ and operated by appellant Willis rounded the curved portion of the highway. The truck was traveling in the opposite direction from that in which the appellees were headed.

As the pickup truck passed appellees, Lawrance Turner heard a "thud", and his wife immediately exclaimed, "Larry, I've been hit. I've been hit with a rock". She then fell to the ground with serious injuries about her right eye and cheek. While giving aid to his wife, Lawrance Turner noticed that the pickup truck driven by Willis had stopped. Turner then noticed that a pipe was protruding from the right side of the truck.

The parties stipulated at trial that the galvanized iron pipe which Turner saw protruding from the truck was 11/4 inches in diameter. The pipe was affixed to the right rear portion of the truck by means of a hingelike attachment which permitted the pipe to swivel on a horizontal plane. The parties further stipulated that when extended at an angle of 90o from the side of the truck, the pipe was 511/2 inches above the ground and extended some 351/2 inches from the right side of the truck. The pipe was normally secured flush against the side of the truck by means of a wire attached to a bracket on the right side of the truck. Appellant Willis testified that he did not check to see whether the pipe was securely fastened before he drove the truck on the day of the accident.

Appellants contended that appellees were contributorily negligent because they were walking in the middle of one lane of the two-lane roadway at the time the accident occurred. Appellees maintained, however, that they never walked upon the roadway itself and that they were definitely on the shoulder of the highway, facing oncoming traffic, at the time of the accident.

Ursula Turner acknowledged that she was looking down at the ground at the time that she was hit and that she never saw the truck coming. Lawrance Turner indicated that although he did see the truck coming, he did not actually see the pipe protruding from the side of the truck until after the accident had occurred.

The jury returned a verdict, upon special interrogatories, finding that appellant Willis was negligent and that his negligence was a proximate cause of the accident. The jury found that Ursula Turner was also contributorily negligent, but it failed to find that her contributory negligence was a proximate cause of the accident. ² The jury thus failed to respond to a special interrogatory regarding possible apportionment of negligence between appellant Willis and appellee Ursula Turner.

The jury awarded general and special damages against appellants in the total amount of $92,000. Judgment pursuant to this verdict was filed on November 13, 1975. A bill of costs and notice for taxation of costs were also filed on the same date.

I. RES IPSA LOQUITUR INSTRUCTION

Appellants contend that the trial court erred in giving Plaintiffs' Instruction No. 2 to the jury. This instruction, given over appellants' objection, read as follows:

On the issue of negligence, one of the questions for you to decide in this case is whether the accident occurred under the following conditions:

First, that it is the kind of accident which ordinarily does not occur in the absence of someone's negligence;

Second, that it was caused by an instrumentality in the exclusive control of the defendants; and

Third, that the accident was not due to any voluntary action or contribution on the part of the plaintiffs which was the responsible cause of plaintiff's injury.

If, and only in the event that you should find all these conditions to exist, You are instructed from the happening of the accident involved in this case that a proximate cause of the accident was some negligent conduct on the part of the defendants. (Emphasis added.)

Appellants argue that this instruction was erroneous because it compelled the jury to find negligence on the part of the defendants once the jury found that the accident occurred under the three conditions described. Appellants maintain that the theory of res ipsa loquitur merely permits, rather than compels, an inference of negligence once the jury finds that the requisite res ipsa loquitur elements exist.

Appellants further argue that the instruction was erroneous because it provided that once the jury inferred negligence on the part of the defendants, the jury was required to find that the negligence was also a proximate cause of the accident.

We agree that Plaintiffs' Instruction No. 2 was clearly erroneous and could have been misleading to the jury.

First, however, we must dispose of appellees' contention that appellants failed to properly object to Plaintiffs' Instruction No. 2 at trial. Appellees argue that appellants' counsel merely objected to Plaintiffs' Instruction No. 2 on the general grounds that the res ipsa loquitur theory was inapplicable under the facts presented in this case. Appellees assert that appellants' current additional objection to the instruction on the ground that it states the law incorrectly with specific regard to negligence and proximate cause under the doctrine of res ipsa loquitur is improper given the provisions of HRCP Rule 51(e). ³ Appellees state that under that Rule, a party may not object to an instruction on one ground at trial and then attempt to rely on a different ground of objection on appeal. ⁴

This Court has previously indicated that the provisions of HRCP Rule 51(e) may be construed in a liberal manner. See Struzik v. City and County of Honolulu, 50 Haw. 241, 246, 437 P.2d 880, 884 (1968). However, we need not decide whether appellants' counsel's objection to Plaintiffs' Instruction No. 2 was sufficiently explicit to apprise the trial court of the issues raised for purposes of HRCP Rule 51(e). Even if we were to assume that the grounds of objection stated at trial were inadequate to preserve all the issues now raised on appeal, such an assumed failure to adequately object is not an absolute bar to this Court's consideration of an instruction which, in our opinion,...