Summary
affirming trial court's exclusion of information in a police report
Summary of this case from Bernache v. BrownOpinion
No. 75-551
Decided April 15, 1976.
In personal injury action arising out of accident in which defendants' truck being backed from driveway was struck by plaintiff's automobile, defendants appealed jury finding that they were sixty per cent at fault.
Affirmed
1. TRIAL — Preliminary Order — Evidence in Chambers — Intoxication — Potentially Inadmissible — Not Reversible Error. Where, in order to prohibit reference before the jury to certain specific matters of a potentially inadmissible nature, the trial court granted a preliminary motion by plaintiff to require defendants to present, in chambers certain evidence pertaining to plaintiff's purported intoxication at the time of the accident at issue, and where the order was not used to eliminate a legitimate defense and did not have the effect of excluding any admissible evidence sought to be introduced by defendants, the entry of the order was not reversible error.
2. DAMAGES — Subsequent Injury — Recuperative Period — Foreseeable Consequence — Admission of Evidence — Not Error. That a party injured in an automobile accident might later fall and suffer further injuries while attempting to recuperate is fully within the ambit of foreseeable consequences likely to flow as a natural result of the original injury, and, in action to recover for damages sustained in auto accident, submission of evidence pertaining to the subsequent occurrence was not error.
3. EVIDENCE — Subsequent Accident — Not Related to Present Case — Cautionary Instruction — Admission of Testimony — Not Reversible Error. Where plaintiff testified to a subsequent accident to demonstrate that the second auto accident was in no way related to the present action against defendants and to show that injuries sought to be compensated had not been suffered in, or aggravated by, the second accident, and where trial court gave jurors appropriate cautionary instructions, the admission of such testimony was not reversible error.
4. TRIAL — View of Premises — Proper Precautions — Discretion of Trial Court. When proper precautions are taken, permitting the jury to view property of premises involved in a lawsuit becomes a matter resting within the sound discretion of the trial court.
5. EVIDENCE — Police Officer's Testimony — First Hand Knowledge — Statement of Plaintiff — Properly Excluded — Personal Observations — Admissible. Where defendants were unable to show that police officer had himself heard plaintiff's statement which had been noted in police report, the trial court was correct in excluding testimony as to the statement and in refusing to admit report itself into evidence, but other testimony of the officer, based on his personal observations of scene of accident as refreshed by the report he had prepared during investigation thereof, was admissible.
6. AUTOMOBILES — City Ordinances — Backing of Vehicles — Standard of Care — — Instruction Proper — Defendant's Backing Truck Stopped — Pulled Forward. — — Where defendant had been backing truck into street, but had ceased backing and pulled forward somewhat when accident occurred, city ordinance governing backing of vehicles was properly submitted to jury by instruction as establishing the requisite standard of care.
Appeal from the District Court of the City and County of Denver, Honorable Charles Goldberg, Judge.
Litvak, Schwartz Karsh, P.C., Lawrence Litvak, for plaintiff-appellee.
Yegge, Hall Evans, Raymond J. Connell, for defendants-appellants.
Division III.
In plaintiff's personal injury action premised on negligence, defendants appeal from judgment entered upon a jury verdict in favor of plaintiff. We affirm.
Defendant Waters, a mechanic, who was operating a truck owned by Feld, was attempting to back the truck out of a garage driveway and into the street in order to move it to a nearby parking lot. He began to back up into the street, but pulled partially back into the driveway when he saw a number of cars approaching. All but one of the vehicles, that driven by plaintiff, successfully avoided colliding with the truck. Plaintiff was injured in the collision, and instituted this suit, to which defendants interposed the affirmative defenses of contributory negligence and failure to mitigate damages. After trial, the jury apportioned to plaintiff 40% of the negligence causing the accident, and 60% to defendant Waters. Plaintiff's damages were assessed at $75,000. The trial court therefore entered judgment in favor of plaintiff, and against both defendants, for $45,000 pursuant to § 13-21-111(3), C.R.S. 1973.
I.
The defendants first contend that the trial court committed error in granting a preliminary motion by plaintiff to require defendants to present, in chambers, evidence pertaining to plaintiff's purported intoxication at the time of the incident. Defendants challenge the order as being overbroad, with the effect of preventing the fair and orderly presentation of their case and unduly limiting development of material and relevant testimony. We disagree with their contention.
By its terms, the order did not represent a final ruling on the admissibility of any evidence, but rather, merely required the defendants to present evidence pertaining to specific matters to the court in the jury's absence. Hence, unless it can be demonstrated that the order operated to the prejudice of defendant's rights, granting the motion was proper as incident to the trial court's authority to enter orders controlling the course of litigation. Bruckman v. Pena, 29 Colo. App. 357, 487 P.2d 566.
According to the deposition of defendant Waters, several witnesses, who were never identified, told police officers investigating the accident that plaintiff had been operating her vehicle in an erratic manner immediately prior to the collision. Waters also claimed plaintiff had asked him not to call the police following the accident, asserting that she had told him that she had been drinking. Counsel could not agree, prior to trial, as to the admissibility of testimony to these matters. In addition, a statement made by plaintiff to a police officer at the scene was known by counsel for both parties to pose an evidentiary issue which would have to be resolved at some point during trial.
At no time did defendants offer admissible evidence pertaining to plaintiff's operation of her vehicle prior to the collision, nor did subsequent testimony establish a sufficient foundation for the introduction of a written police record of the statement allegedly made by plaintiff to a police officer. Hence the order was properly entered to prohibit defendants' attorney from presenting possibly inadmissible testimony to the jury, and its entry therefore did not prejudice defendants' rights. See Bruckman v. Pena, supra.
As to the statement allegedly made by plaintiff to Waters, Waters was permitted to testify fully as to the content of the statement, and defendants' counsel was allowed to cross-examine plaintiff without limitation on the subject of her purported intoxication at the time of the collision. At no time was defendants' counsel prevented from attempting to show plaintiff's allegedly inebriated condition; rather, the challenged order only restricted the introduction of testimony on the issue of intoxication which was probably inadmissible under the hearsay rule.
[1] Since the order was used to prohibit reference to certain specific matters of a potentially inadmissible nature, and was not used to eliminate a legitimate defense, see Lewis v. Buena Vista Mutual Insurance Ass'n., 183 N.W.2d 198 (Iowa), and since the order did not have the effect of excluding any admissible evidence sought to be introduced by defendants, its entry was not reversible error. Bruckman v. Pena, supra.
II.
Defendants next challenge the trial judge's refusal to exclude testimony pertaining to injuries suffered by plaintiff in a fall in her home subsequent to the subject accident.
As a consequence of the collision, plaintiff suffered various physical injuries including a fractured bone in her hip. At the time of the fall in her home, the testimony established that plaintiff was using a walker in order to ambulate, was in considerable pain, and was taking various medications in connection with injuries suffered in the collision. Her physician stated that such falls were common, based on the awkwardness of employing a walker in order to get around, and further testified that the fall, resultant injuries, and subsequent surgical operations were all causally connected to the earlier collision with the defendant's truck.
[2] That a party injured in an automobile accident might later fall and suffer further injuries while attempting to recuperate is fully within the ambit of foreseeable consequences likely to flow as a natural result of the original injury. Restatement of Torts § 460. See Brown v. Beck, 63 Cal. App. 686, 220 P. 14; Smith v. Northern Pacific R.R. Co., 79 Wash. 448, 140 P. 685. Under the circumstances before us, submission of evidence pertaining to the subsequent occurrence was not error. See Stout v. Denver Park Amusement Co., 87 Colo. 294, 287 P. 650.
III.
[3] Defendants next contend that the trial court improperly permitted testimony pertaining to a subsequent automobile accident in which plaintiff, a passenger, was injured. Again, we disagree.
The testimony pertaining to this accident was offered by plaintiff in anticipation of a possible attempt on the part of defendant to demonstrate that the injuries sought to be compensated for in the instant lawsuit had in fact been suffered or aggravated by this other, later accident. Plaintiff's counsel merely attempted to demonstrate that the second automobile accident was in no way related to the action against the defendants, that this accident had no effect as to later surgical procedures undergone by defendant on her hip, other than necessitating delay in undergoing necessary surgery.
Plaintiff offered no evidence pertaining to expenditures resulting from the accident, and no attempt was made to utilize the testimony in order to evoke the sympathy of the jurors. The trial court gave the jurors appropriate cautionary instructions that the second accident was not to be considered in conjunction with the recovery sought by plaintiff in the case before them. Under these circumstances, we cannot say that the admission of testimony pertaining to the second automobile accident constitutes reversible error.
IV.
Defendants next contend that the trial court's order permitting the jury to view a truck similar to the one involved in the collision was error. They urge that since the truck was viewed during daylight hours in the courthouse parking lot, and not at night at the scene of the accident, the view prejudiced defendants' case since their defense was premised in large part on the obvious visibility of the truck to oncoming traffic by reason of its illuminated running lights. We reject this argument.
[4] When the proper precautions are taken, as they were here, permitting the jury to view property or premises involved in a lawsuit becomes a matter resting within the sound discretion of the trial court. C.R.C.P. 47(k); Saint v. Guerrerio, 17 Colo. 448, 30 P. 335.
Here, the defendants have failed to demonstrate either abuse of discretion or prejudice.
V.
The defendants also assert that the trial court erred in refusing to allow a police officer, J. H. Kenny, to testify as to the statements supposedly made by plaintiff to the effect that she had fallen asleep at the wheel. Defendants further argue that the trial court committed reversible error in refusing to grant a subsequent defense motion to strike all of Kenny's testimony. We do not agree that the trial court's ruling in this regard constituted error.
Plaintiff called Kenny to testify. He was one of several police officers investigating the subject accident, and had prepared an accident report in conjunction with the investigation. Although his recollection of the accident scene was vague, he stated that he had a partial recollection of the incident, and, with the help of a written accident report which he had prepared, he was able to reconstruct the position of the vehicles as they were located at the time of his arrival, based on measurements he had personally made at the scene. At the time of this testimony, no objection was offered by defendants.
On cross-examination, even though Kenny testified that he did not recall ever speaking to either plaintiff or defendant Waters, defendants' attorney asked Kenny what the plaintiff had told him at the scene relative to the accident. Objection by plaintiff for lack of foundation was sustained, whereupon defendants moved to strike all of Kenny's testimony arguing that if any of Kenny's testimony, based on the accident report, was inadmissible, then all of the matters contained in the report were similarly inadmissible, and thus could not serve as a basis for Kenny's testimony. The trial court then reaffirmed its ruling that Kenny could not testify as to the statement in that Kenny did not recall ever speaking with plaintiff, and hence, that the reference in the written report to the statement by plaintiff was similarly inadmissible, but that the remainder of Kenny's testimony, based as it was on Kenny's personal observations, was properly admitted into evidence. The trial court ruled that the motion to strike the whole of Kenny's testimony was not timely. We perceive no error in these rulings.
[5] Although an accident report based on a police officer's personal knowledge may be admissible if the officer is present in the courtroom, and thus, is available for cross-examination, see Orth v. Bauer, 163 Colo. 136, 429 P.2d 279, statements allegedly made by third parties which appear in a police report are inadmissible where it does not appear that the officer had personal knowledge of the making of the statement but merely recorded what another person, police officer or not, reported the statement to be. Simonton v. Continental Casualty Co., 32 Colo. App. 138, 507 P.2d 1132. See also Denver City Tramway Co. v. Hills, 50 Colo. 328, 116 P. 125. Accordingly, since defendants were unable to show that Kenny had himself heard plaintiff's statement, the trial court acted properly in excluding testimony as to the statement and in refusing to admit the record itself into evidence. Polster v. Griff's of America, Inc., 34 Colo. App. 161, 525 P.2d 1179.
Nor did the trial court err in refusing to strike all of Kenny's testimony pertaining to the accident. The matters as to which Kenny testified were based on his personal observations at the scene of the accident, as refreshed by reference to a written report he himself had prepared during the investigation. As to these matters, Kenny's testimony was admissible. See Orth v. Bauer, supra.
VI.
[6] The defendants further assert error in the trial court's submission of an instruction based on a city ordinance governing the backing of vehicles, arguing that submission of this instruction was not supported by the evidence. We reject this argument. Even though defendant Waters had ceased backing at the time of the accident, and had in fact pulled forward somewhat, still his alleged negligence was premised upon his carelessness in moving the truck to a dangerous position in the street. Hence, the standard of care established in the ordinance was properly submitted to the jury by instruction. See Denver Revised Municipal Code § 517.13. See also Yockey Trucking Co. v. Handy, 128 Colo. 404, 262 P.2d 930; McBride v. Woods, 124 Colo. 384, 238 P.2d 183.
VII.
We also reject defendants' contention that the trial court erred in refusing to submit the jury a tendered instruction, based on § 42-4-1202, C.R.S. 1973, concerning driving while ability is impaired by consumption of alcohol. The evidence as to drinking would not support submission of the tendered instruction. Hence, the trial court's refusal of the instruction was not error.
Finally, defendants' challenge to the admissibility of certain checks as evidence of medical expenses is without merit. A proper foundation for their admission was laid. See Palmer Park Gardens, Inc. v. Potter, 162 Colo. 178, 425 P.2d 268; Kendall v. Hargrave, 142 Colo. 120, 349 P.2d 993.
Judgment affirmed.
JUDGE SMITH and JUDGE BERMAN concur.