Dawson v. Olson

¶1(dissenting).

¶2I must respectfully dissent from the opinion of the majority.

¶3Each of the grounds relied upon by the majority — the refusals to admit Reece’s testimony, exhibit 1, and the chart showing average stopping distances, and the refusal to clarify an instruction given — are matters which, in the past, have been matters for the discretion of the trial court.

“ ‘The determination of the question whether evidence is or is not too remote is for the determination of the trial court and it is clothed with wide discretion in this regard.’ ” Blankenship v. Brookshier, 91 Idaho 317, 322, 420 P.2d 800, 805 (1966), quoting Casey v. Casey, 97 Cal.App.2d 875, 218 P.2d 842, 847 (1950).

“As with other types of evidence, demonstrative evidence, though otherwise admissible, is subject to the broad discretionary power of the judge to exclude it if he finds that its probative value is outweighed by the danger that the jury will be unduly prejudiced or give it more weight than it is entitled to, or that the attention of the jury will be distracted to collateral matters, or that it will entail an unwarranted waste of time and the like.” Gard, 3 Jones on Evidence § 15.2, p. 5 (6th ed. 1972).

“In order to be admissible, such evidence [a chart showing average stopping distances published in the Idaho Driver’s Handbook] must be relevant and material; but it is within the discretion of the trial court to determine whether sufficient foundation has been laid to admit such a chart.” Bell v. Joint School Dist. *284No. 241, 94 Idaho 837, 840, 499 P.2d 323, 326 (1972).

“As a general rule the decision to further instruct a jury on a matter is within the trial court’s discretion.” (Majority opinion, supra.)

¶4Nevertheless, the majority reviewed only one issue, the trial court’s refusal to clarify an instruction given, as a matter committed to the discretion of the trial court.

¶5The term, “abuse of discretion”, necessarily implies that the trial court should enjoy some latitude in ruling on a matter committed to the trial court’s discretion before this court will reverse that discretionary ruling. In my opinion, such discretion should be given as the trial court, not this court, is charged with the responsibility of conducting the trial. If we do not entrust the trial court with certain discretionary powers, we will be forced to try every appeal anew in this court; my opinion, which is apparently contrary to that held by the majority, is that a trial de novo is not the appropriate role for an appellate court.

¶6The Supreme Court of Oregon has discussed the question of trial court discretion as it pertains to the admission of evidence.

“In this case, the evidence in question was objected to as being too ‘remote.’ Such an objection requires the trial judge to assess the probative value of the proffered evidence, and to weigh the probative value against various considerations which may militate against admissibility, such as undue prejudice, introduction of collateral issues, consumption of undue time, or unfair surprise to the other party. McCormick on Evidence (2d ed. 1972) 439-440 § 185. If he finds the evidence to have no probative value, he must exclude it. If, on the other hand, it does tend to establish a fact in issue, and no contrary considerations are present in the particular case, the evidence must be admitted. Between these two extremes, however, is an area in which further judgment must be exercised. If the evidence has some probative value, but also presents difficulties such as those mentioned above, the judge must determine whether the value of the evidence outweighs, or is outweighed by, the offsetting considerations. We sometimes call the exercise of this kind of judgment ‘discretion.’ Its exercise requires the judge to weigh the value of the evidence in light of all the circumstances of the particular case, and his conclusion, if it is reasonable, will not be disturbed on appeal. Precedent is of little value in reviewing such cases, because even when cases involve similar issues and similar types of evidence, the other factors which may properly influence the trial court’s ruling are highly variable. We simply determine whether, on the facts of the particular case, the trial court’s ruling was within the reasonable or permissible range. We need not determine whether his ruling was the only one possible. It may be that the record will support either admission or exclusion; if so, the trial court’s ruling will be affirmed, regardless of which solution we would prefer.” Carter v. Moberly, 263 Or. 193, 501 P.2d 1276, 1279-80 (1972).

¶7See, Rosenberg, “Judicial Discretion”, 22 Syracuse L.R. 635-667 (1971). This court, reviewing a ruling committed to the discretion of the trial court, should not rule upon the question as a matter of law, nor should this court substitute its judgment for that of the trial court. Rather, we should only review a discretionary matter to determine if the trial court’s ruling was reasonable, not if the ruling was the ruling which this court would have made.1

¶8*285The majority has ruled upon the trial court’s refusal to admit Reece’s testimony as a matter of law:

“We hold that the speed of that vehicle at the point at which Reece observed it is not too remote, but is admissible, ‘its weight and credibility being for the jury’

¶9But, as this court held in Blankenship v. Brookshier, supra, the question is a question for the discretion of the trial court.

¶10In both cases cited by the majority, Koch v. Elkins, 71 Idaho 50, 225 P.2d 457 (1950), and Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117 (1958), the trial court admitted evidence of speed or manner of driving over an objection, and the appellate court affirmed the ruling. Thus, the appellate court was upholding, in effect, the trial court’s exercise of discretion. If, on the same facts, the trial court had rejected the offered evidence, an appellate court generally could have affirmed that ruling also. Inherent in the concept of trial court discretion is a “gray area” wherein a trial court’s decision should not be reversed regardless of whether that decision admits or rejects evidence because reasonable men could differ as to the “right” decision. In other words, a ruling committed to the discretion of the trial court need only be reasonable and the “gray area” arises when reasonable men could have ruled either way. The cases cited by the majority hold that it was reasonable to admit the evidence; they do not hold, as the majority concludes, that it was unreasonable and reversible error to refuse to admit the evidence.

¶11Reece’s testimony had probative value; the speed of the Olson vehicle was at issue and, if permitted, Reece would have testified that he observed the Olson vehicle traveling 90 miles per hour at a location a mile and one-half from the accident scene a minute to two minutes prior to the time when Reece observed the burning wreckage of Olson’s car. If I were sitting as the trial judge in this case, I would have ruled Reece’s testimony to be admissible. But, as an appellate judge reviewing the trial court’s ruling, I cannot say that his ruling was without a reasonable basis and so was an abuse of discretion.

¶12Exhibit 1, the enlarged and simplified map of the intersection, was offered into evidence three times and each time the trial court excluded the exhibit. The majority found this to be error. It was not until exhibit 1 was offered the third time, at the close of the plaintiffs’ case, that the plaintiffs specifically stated that the map was offered for illustrative purposes. The inference of the majority opinion is that the trial judge, on the two prior occasions when exhibit 1 was offered, should have realized that exhibit 1 was offered for illustrative purposes.

“ … Since it was apparent that the map was being introduced for illustrative purposes at least, it was error for the trial court to refuse to admit the simplified map for that limited purpose.”

¶13Considering the fundamental tenets of our advocacy system, I think that exhibit 1 was offered for illustrative purposes only once —at the close of the plaintiffs’ case. As the defendants did not present any evidence, exhibit 1, in effect, was offered at the close of the evidence for illustrative purposes. I do not think that it was an abuse of discretion by the trial court to refuse to admit exhibit 1 for illustrative purposes at this point in the trial. All the evidence, including an engineering map of the intersection from which the simplified map, exhibit 1, was compiled, was in. Thus, there remained no evidence to be presented which could have been illustrated or clarified by the use of exhibit 1. I think that the trial court correctly exercised its discretion by excluding exhibit 1; to have admitted exhibit 1 at this time may *286have confused the jury and certainly was an unwarranted waste of time since the official engineering drawing was already in evidence. Gard, 3 Jones on Evidence, § 15.2 (6th ed. 1972).

¶14The majority holds that a chart prepared from the Idaho Driver’s Handbook showing stopping distances should have been admitted into evidence. The defendants objected to the admission of the chart because there was “no evidence …

¶15that either car tried to stop” and so “stopping distances would [not] be material”. The trial court sustained this objection. In the opinion of the majority, this chart was relevant:

“ … In this case a question which the jury must necessarily consider in deciding if Olson’s negligence was a cause of the collision was whether, if Olson had been driving his car at a lawful rate of speed and had been attentive as a reasonable and prudent driver to the conditions in the roadway ahead of him, could he by exercising the skill of a reasonable and prudent driver have stopped before colliding with the Dawson vehicle or otherwise avoided the accident by taking appropriate action at that point when he should first have become aware that the Dawson vehicle presented a road hazard ahead. The stopping chart is certainly relevant and material in deciding that question and should have been admitted.”

¶16In essence, the majority asserts that an issue for the jury was whether Olson had the last clear chance to avoid the accident and that the chart was relevant to this issue. See, Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973). However, the jury was not instructed on the doctrine of last clear chance and the plaintiffs have not assigned this failure to instruct as error. The chart was not relevant as the last clear chance doctrine was not at issue in the case; therefore, in my opinion the trial court did not abuse its discretion by refusing to admit the chart.

¶17The majority opinion holds that “the trial court did have a duty in this case to clarify its definition of proximate cause when the jury returned to court indicating its confusion. The majority does recognize that “[a]s a general rule the decision to further instruct a jury on a matter is within the trial court’s discretion”. I cannot agree with the majority that instruction number 4 was so confusing that the trial court had a duty to give a clarifying instruction. The import of instruction number 4, insofar as it defines proximate cause, is similar to the Idaho Jury Instruction on proximate cause. Instruction number 4 is confusing in that it fails to instruct the jury that there may be more than one proximate cause. However, I believe that this confusion was cured by instructions number 8,2 27,3 and 34. The instructions given must be considered as a whole. Considering the other instructions given and the inherent complexity of the concept of proximate cause, I do not think that instruction number 4 was so confusing that the trial court abused its discretion by refusing to clarify instruction no. 4.

¶18Finally, I think that the majority has chosen to ignore several precepts basic to appellate procedure in reaching their decision. This court has long adhered to the principle that the burden of showing error is on the appellant. Close v. Rensink, 95 Idaho 72, 501 P.2d 1383 (1972); Hill v. Porter, 38 Idaho 574, 223 P. 538 (1924). See, Murphy v. Fuld, 2 Idaho 175, 9 P. 609 (1886). Also, this court has long held that, on appeal, the facts must be viewed in the light most favorable to the respondent. May v. Triangle Oil Co., 96 Idaho 289, 527 *287P.2d 781 (1974); Page v. Savage, 42 Idaho 458, 246 P. 304 (1926). The most graphic example of the majority’s ignoring these precepts is their analysis of the trial court’s exclusion of the chart showing average stopping distances. Not only did the majority refuse to view the record in the light most favorable to the defendants-respondents, but they gave the plaintiffs-appellants the benefit of a new theory of the case, last clear chance. The jury was not instructed on the doctrine of last clear chance and the court’s failure to so instruct was not assigned as error. Thus, according to the principles of appellate review, the doctrine of last clear chance was not relevant to this case. Nonetheless, the majority has seen fit to give the plaintiffs-appellants a new theory by which the case can be reviewed on appeal. Thus, I am forced to conclude that the majority’s opinion is a departure from the traditional rules of appellate review. In my opinion, the judgment should be affirmed.