Ray v. Henderson

DEVINE, J. Plaintiff, appellant, brought this action for personal injuries arising from an accident in which she was driving respondent’s automobile, and respondent cross-complained for damages to the vehicle. The jury’s verdict was that neither party is entitled to damages. Plaintiff moved for new trial; the motion was denied by operation of law when the court did not grant it within the statutory period.

Two errors are claimed: (1) that evidence was improperly received that defendant had heart disease and cancer, and (2) that it was misconduct for defendant’s counsel to refer to an accident report of the highway patrol.

The essential facts in the case are these: The witnesses agree that the accident occurred when defendant, who was riding in the front seat next to plaintiff, who was driving, seized the wheel of the car and caused the vehicle to crash into an embankment on a mountain road. Defendant’s version is that the car skidded while rounding a turn, at a speed that was high considering the nature of the road, and that plaintiff cried out that the brakes were gone; and that, as there was another curve not far ahead, an outside curve, and there was a drop of 300 feet on the right hand side to the Klamath River, he seized the steering wheel, against the resistance of plaintiff, and turned the vehicle, a Volkswagen, into a bank. Plaintiff’s version is that there was no emergency, although the right rear wheel did skid, and that she did say to defendant that the brakes did not seem to be working just right. Her testimony relating to her remark to defendant was corroborated by her father-in-law, but contradictory testimony was received in the form of a statement which plaintiff had made to a Highway Patrol officer the day following the accident that the brakes had gone out and that she told her passenger (defendant) this, and in the form of a written statement, made three days after the accident, in which plaintiff said she put her foot on the brake pedal but nothing happened, and that she told defendant that there was no brake. Also, the ambulance driver who took her from the accident testified that she told him she lost control of the car, tried to put the brakes on and the brakes went out. The fourth occupant of the vehicle, plaintiff’s nephew, was in college in Alaska at the time of the trial, and this fact was [194]brought before the jury. No deposition of the nephew was offered, and perhaps none was taken.

At the time of the trial during February 1961, about two and a half years after the accident, counsel for defendant produced as a witness Dr. Zuleger, personal physician of the defendant, who testified that defendant had a cancer of the stomach, which was discovered in the fall of 1960 and which was already at a stage where it was inoperable, that he had a heart attack while he was in the hospital for the diagnosis and another attack about a month later. He testified that for Mr. Henderson to testify might produce acute heart failure or another heart attack. Counsel for plaintiff had objected on the ground of irrelevancy and after the testimony was given moved to strike and assigned the questioning as misconduct. He did not, however, ask for any admonition to the jury.