Young v. Price, 4250

• Decision Date: 01 September 1964
• Docket Number: No. 4250,4250
• Citation: 48 Haw. 22,395 P.2d 365
• Parties: Mary Ruth YOUNG v. Louis P. PRICE and Allen L. Souza, individually and doing business as Price Concrete Tank Company, an Hawaiian Co-Partnership.
• Court: Hawaii Supreme Court

Page 365

395 P.2d 365

48 Haw. 22

Mary Ruth YOUNG v. Louis P. PRICE and Allen L. Souza, individually and doing business as Price Concrete Tank Company, an Hawaiian Co-Partnership.

No. 4250.

Supreme Court of Hawai'i.

Sept. 1, 1964.

Syllabus by the Court

1. On a motion for a directed verdict, the evidence and the inferences which may be fairly drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences so viewed are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue submitted to the jury.

2. Ordinarily it may be presumed that a jury will abide by the court's instruction to disregard evidence that was improperly received and subsequently stricken.

3. Error in the admission of improper evidence is not cured by the court's striking the evidence and admonishing the jury to disregard it unless it appears reasonably certain that the prejudicial effect of the evidence on the jury dispelled by the instruction.

4. Misconduct of counsel in argument to the jury cannot be relied upon as error upon a motion for new trial or upon appeal in the absence of objection to the improper argument when it was made.

5. On authority of Franco v. Fujimoto, 47 Haw. 408, 390 P.2d 740, permitting use of mathematical formula in arguing damages for pain and suffering held error.

6. In an action for personal injuries resulting from plaintiff's tripping, in inclement weather, over a one-inch hose laid across a sidewalk with a traffic cone marker at each edge of the sidewalk, it was not error to refuse to instruct the jury that when there is evidence to the effect that a person did look but did not see what was in plain sight, it follows that some part of such evidence is untrue or that the person was negligently inattentive.

Donald A. Beck, Honolulu (Smith, Wild, Beebe & Cades, Honolulu, of counsel), for defendants-appellants.

Ralph E. Corey, Honolulu (Clark & Corey, Honolulu, of counsel), for plaintiff-appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

CASSIDY, Justice, with whom LEWIS and MIZUHA, Justices, join.

In this action the jury returned a verdict awarding plaintiff $37,500.00 general damages and $424.90 special damages, for injuries sustained when she fell, on March 4, 1958, after stubbing her toe or stepping on a one-inch hose that defendants, while performing a construction job, had laid across a sidewalk in Waikiki. There was testimony that a warning cone had been placed near each edge of the sidewalk in the vicinity of the hose. One of them had a red flag protruding from it. The evidence pertaining to liability is related in detail in the opinion of the court on defendants' appeal from the judgment, reported in 47 Haw. 309, 388 P.2d 203, and in which it was held, with two justices dissenting, that the plaintiff was guilty of contributory negligence as a matter of law and that the trial court committed error in not granting the defendants' motion for a directed verdict. Judgment was reversed and remand for entry of judgment for defendant was ordered.

The gist of the court's holding is reflected in the statement appearing at pp. 322-323 of the opinion, 388 P.2d at pp. 211-212, as follows: 'By failing to see--ahead of her on the sidewalk and in her direct line of vision--that which was obviously plainly in view, namely, the hose, cones and flag, ahead of her and in her direct line of sight, plaintiff failed to exercise ordinary care for her own safety, and was guilty of contributory negligence as a matter of law. In failing to direct a verdict for the defendants at the close of all the evidence, the trial court committed reversible error.'

No specific ruling was made on whether or not the evidence was sufficient to sustain a finding of negligence on the part of the defendants. In respect to that issue it was said (pp. 315-316, 388 P.2d at pp. 207-208): 'Whether in light of the extrinsic circumstances the precautions taken to prevent injuries to pedestrians using the sidewalk in a lawful and proper manner can be held, as a matter of law, to have relieved the defendants from liability is an exceptionally close question. However, even if it be assumed that there was sufficient evidence to go to the jury on the question of negligence, the plaintiff would not prevail, since we think that the question of liability finds a complete answer in the disposition of the second ground [contributory negligence] of the motions for a directed verdict made by the defendants.'

Plaintiff's petition for rehearing was granted. 47 Haw. 408, 390 P.2d 141.

The basic rule governing the determination of whether there was sufficient evidence to take the contributory negligence issue to the jury is set out in the original opinion at p. 313, 388 P.2d at p. 206, as follows: '[O]n motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, then the motion should be denied and the issue should be submitted to the jury.' With that standard firmly in mind I have, upon further reflection following the rehearing, reached the conclusion, contrary to my original position, that there was sufficient evidence for submission of the issue of contributory negligence to the jury.

As the court's opinion states, 'there is no question that the presence of a hose on a sidewalk creates some risk or hazard to a pedestrian.' (pp. 314-315, 388 P.2d at p. 207). From this it follows that the defendants were required to take steps commensurate with the danger created, to warn or protect pedestrians using the sidewalk. Whether defendants properly did so appears to me to have been clearly a question for the jury. Further, may present view is that the question of plaintiff's contributory negligence is so inextricably entwined with and dependent on the issue of defendants' negligence that it also was properly submitted to the jury. While the evidence on each issue still appears to me to predominate in favor of the defendants, I am now unwilling to say that reasonable men might not differ on the facts or the inferences which may be reasonably drawn from the facts and reach different conclusions in resolving the two issues. These questions are undoubtedly close ones. Because they are, I think the benefit of doubt should be given to the plaintiff.

In short, I now am in agreement with the conclusion of the dissenting justices that the trial court did not commit error in denying defendants' motions for a directed verdict. However, as is stated in the dissenting opinion, a reversal with remand for a new trial is required because of other error.

The claim of error assigned to the denial of defendants' motion for a mistrial predicated on testimony given by the plaintiff as hereunder related must be sustained.

As a result of her fall on March 4, 1958, plaintiff suffered a fracture of the right arm, close to the shoulder. During the course of her direct testimony it was brought out that she had gone to a rehabilitation center for physical therapy in June and July 1958. Counsel thereupon asked her if anything happened late in August. Plaintiff answered in the affirmative and proceeded to tell of a severe heart attack she had on August 15, 1958. She related the agonizing effect of the attack and testified that she was taken by ambulance to Queen's Hospital where she remained under treatment for 15 days. Defense counsel objected to the testimony and moved to strike it on the ground that there was no showing of any causal connection between the heart attack and the accident. The court stated it would take the objection under advisement 'because it may be connected up,' and added, 'If it's connected up I'll overrule your objection. If it isn't connected up, just simply renew your objection, and it will be granted.' To this plaintiff's counsel stated, 'Fair enough, Your Honor.'

Later in her direct testimony plaintiff, in response to her attorney's question as to whether anything 'different than usual' had occurred in 1959, told of being hospitalized for gall bladder operations in July and in September, 1959. The defendants moved to strike the testimony for lack of any showing of a connection between the operations and plaintiff's falling on March 4, 1958. The...