Webber v. Farmer

• Decision Date: 03 February 1966
• Docket Number: No. 3437,3437
• Citation: 410 P.2d 807
• Parties: Landis WEBBER, Appellant (Plaintiff below), v. James FARMER, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 807

410 P.2d 807

Landis WEBBER, Appellant (Plaintiff below), v. James FARMER, Appellee (Defendant below).

No. 3437.

Supreme Court of Wyoming.

Feb. 3, 1966.

G. L. Spence, Riverton, for appellant.

Elmer J. Scott, of Scott & Joffe, Worland, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

Suit was brought by Landis Webber, a rancher, against James Farmer, a truck operator, for the killing of twelve head of plaintiff's cattle on a county road west of Thermopolis, Wyoming, when a herd of cattle were run into by defendant in his truck. Plaintiff also claimed personal injuries to his back caused by his horse being frightened and rearing. The defendant counterclaimed for damages to his truck.

Following trial to a jury, a verdict was returned with a finding against plaintiff on his cause of action and against defendant on his counterclaim. No damages were awarded to either party. Plaintiff-Webber, the owner of the cattle, has appealed.

The asserted grounds of appeal have to do with the admission of evidence; alleged misconduct on the part of counsel for defendant; the sufficiency of evidence for a finding of contributory negligence; and instructions to the jury. We will consider these grounds in the order in which they are listed.

Admission of Evidence

The driver of the truck topped the brow of a hill and on the downslope ran into the herd of cattle, which entirely blocked the roadway. Much attention was given to the distance at which the driver could see the cattle after he topped the brow of the hill and before he hit the cattle. Plaintiff-Webber performed an experiment with a witness and took a picture to determine this distance. Defendant-Farmer with a witness performed a similar experiment and took a similar picture.

Webber claims the camera for Farmer's picture was not at the stipulated height of the eye level of a driver in Farmer's truck; that the picture therefore did not give a true representation of the distance in question; and that the picture for this reason should not have been admitted into evidence.

Defendant-Farmer testified the picture honestly and fairly showed the distance that he could see when he was first able to see the cattle as he approached the scene of the accident. And of course, counsel for Webber was free to cross-examine Farmer as to his theory in this regard and make whatever argument he saw fit to make to the jury. However, Farmer was just as much entitled to present his theory, based on his picture, as Webber was to present his theory based on his picture.

We accept the general rule on determination as to admissibility as stated in 32 C.J.S. Evidence § 716, pp. 1018-1019 (1964), which is in substance this: Whether a photograph is sufficiently verified as a proper representation, is a preliminary question to be determined by the trial judge; and the admission or rejection of a photograph is a matter which rests largely in the discretion of the trial judge.

Our court followed this principle in Dr. Pepper Company v. Heiman, Wyo., 374 P.2d 206, 212. For other cases to the same effect, see Mason v. Bon Marche Corporation, 64 Wash.2d 177, 390 P.2d 997, 998; and Reorganized Church of Jesus Christ of Latter Day Saints v. Universal Surety Company, 177 Neb. 60, 128 N.W.2d 361, 375.

As stated in both of the latter two cases, in the absence of a showing of an abuse of discretion, the trial court's ruling will not be reversed on appeal. In the case at bar, we find no abuse of discretion.

Appellant further claims he was prejudiced because a highway patrolman was permitted to testify, over objection, as to what the standard braking distance of a truck with a weight of 70,000 pounds would be at a speed of 20 miles per hour, on a level hard-surfaced road. It is pointed out that the road here involved was a gravel road and defendant's truck was traveling downgrade.

Based on the authority of Caperon v. Tuttle, 100 Utah 476, 116 P.2d 402, 404-405, 135 A.L.R. 1399, we can agree with appellant that the testimony of the patrolman concerning braking distances should not have been admitted. However, this evidence could serve no purpose except to prove defendant was not negligent. The jury, in denying defendant's counterclaim, necessarily found defendant negligent, and plaintiff was therefore not prejudiced by the patrolman's testimony.

Conduct of Counsel

Appellant complains that the trial court erred in permitting evidence and statements of counsel which compared the wealth of the respective parties in this action. For example, in his opening statement, counsel for the defendant said Mr. Farmer had not repaired his truck because he did not have the money to do so. Also, complaint is made because Farmer testified as to the number of acres of land owned by Webber and at one time referred to $60,000 worth of cows blocking the road. An additional complaint is made against a closing argument statement made by defendant's attorney.

Plaintiff's attorney immediately objected to the statement regarding Farmer not having the money to repair his truck and asked the court to instruct the jury to disregard it completely. The court did so. Also, plaintiff's attorney requested an instruction by the court to the jury relative to the financial condition of the parties, and the court instructed:

'As you were verbally instructed heretofore, the financial status or condition of either party in this case has nothing whatever to do with the issues in this case and you should not consider or conjecture on this proposition.'

As near as we can tell, neither any request for correction by the court nor any request for instructions to the jury was made by plaintiff's attorney, with respect to matters now complained of, without the request being complied with by the court. Counsel for appellant seems to agree no one of his objections is sufficiently serious to warrant reversal, but he suggests all added together rendered a prejudicial effect.

Complaints similar to those now made by appellant's attorney were made in Ford Motor Company v. Arguello, Wyo., 382 P.2d 886, 892, and in Edwards v. Harris, Wyo., 397 P.2d 87, 95. We did not in those cases, and we do not in this case, condone questionable practices on the part of trial attorneys in alluding to matters or causing matters to be alluded to, before the jury, which ought not to be referred to in the presence of the jury.

We repeat again, however, the well-established rule which we followed in the Ford Motor Company case and in the Edwards case, that it is incumbent upon counsel to object to remarks of opposing counsel and to give the trial court an opportunity to instruct the jury to disregard the same or otherwise correct the record, before alleged prejudicial error concerning the remarks can be considered on appeal.

This simply means when an attorney chooses to let conduct which he considers questionable go without an attempted correction, taking his chances on a favorable decision by the jury with things as they are, he cannot be heard to complain afterward if and when the decision turns out not to be favorable.

Evidence of Contributory Negligence

As to whether there was sufficient evidence for the jury to have found plaintiff contributorily negligent, appellant has attached to his brief a schematic drawing of the scene of the accident and the facts related thereto, as established by the evidence.

This drawing alone, if we assume the facts to be as depicted thereon, shows reason enough for the jury to have found plaintiff negligent. Of course, we need not and we will not say there was contributory negligence as a matter of law, but we can say appellant's own representation of the facts shows the jury had sufficient reason to hold him, as plaintiff, guilty of contributory negligence.

As represented by the drawing, plaintiff was...