Bendorf v. Volkswagenwerk Aktiengeselischaft

564 P.2d 619, 90 N.M. 414

• Court: New Mexico Court of Appeals
• Decided: April 5, 1977
• Docket: 2648
• Status: Published

Opinions

OPINION

HENDLEY, Judge.

Plaintiff appeals an adverse verdict after retrial. See Bendorf v. Volkswagenwerk Aktiengeselischaft, 88 N.M. 355, 540 P.2d 835 (Ct.App.1975) (Bendorf I). Plaintiff claims the accident was caused by a defective seat track mechanism made by defendant. Defendant claims the seat track mechanism was not defective and even if defective it was plaintiff’s wrongful driving which caused the accident or plaintiff assumed the risk of the defect because he knew of the defect. The facts are basically set forth in Bendorf I.

Plaintiff’s points for reversal on appeal are: (1) the jury was erroneously instructed that ordinary contributory negligence is a complete defense; (2) the jury was erroneously instructed on ordinary contributory negligence; (3) the trial court’s conduct deprived plaintiff of his day in court; (4) the trial court erred in refusing to allow defendant’s expert witness to be examined as to his compensation; (5) the trial court erred in admitting testimony of how the seat track mechanism operated after the accident; and (6) the trial court erred in refusing to admit prior consistent statements of plaintiff.

Contributory Negligence

Before reaching plaintiff’s two arguments concerning the jury instructions we feel it advisable to briefly discuss our decision in Bendorf I. In that ease we said that: “ * * * the jury was incorrectly instructed that plaintiff’s negligent driving was contributory negligence, an affirmative defense, and, therefore, that a finding that .plaintiff drove negligently required a verdict for the defendant regardless of its findings as to proximate cause. * * * ” Bendorf I. The jury was also instructed that contributory negligence is “ * * * negligence on the part of plaintiff that proximately contributed to cause his damages.” Bendorf I. We stated that the affirmative defense of assumption of the risk and misuse were not involved in the case and that “* * * defendant’s defense should only have prevailed if plaintiff’s negligent driving had caused the accident. * * * ” Bendorf I. The error, therefore, was that the instruction required a verdict for the defendant if the jury believed that plaintiff’s wrongful driving and the defective seat were concurring causes of the accident. Our decision implicitly adopted the view that “ * * * if a product is defective, if the plaintiff is unaware of that defect, and if that defect is the proximate cause of the plaintiff’s [accident], then the fact the plaintiff’s negligent conduct may have concurred with the defect to cause * * * [the accident] should have no bearing on the validity of the initial policies calling for the application of strict liability. * * * ” Bachner v. Pearson, 479 P.2d 319 (Alaska 1970). Accord, Findlay v. Copeland Lumber Company, 265 Or. 300, 509 P.2d 28 (1973). The result being that the jury should not have been required to find for the defendant unless they found that plaintiff’s wrongful driving was the sole proximate cause of the accident. See Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okl.1976).

In the present appeal, the trial court’s instruction No. 1 read as follows:

“The Plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following acts:

“That in designing, constructing and assembling the 1964 Volkswagen, it was so designed, constructed and assembled that the front seat, when used by the driver in the usual type of traffic, would move interferring with the safe operation of the vehicle;

“That on the 17th day of February, 1969, the Plaintiff was driving a 1964 Volkswagen in a northerly direction on San Mateo N.E., and as he was driving across 1-40, traffic conditions made it necessary for him to apply the brakes as would be expected under the then existing conditions and as he did so, the seat moved, causing Plaintiff to lose control of his car, run a red light and collide with another car, which resulted in injuries which have left him paralyzed.

“The Plaintiff has the burden of proving that he sustained damages and that one or more of the claimed acts was a proximate cause thereof.

“A. The Defendant denies all the Plaintiff’s claims and asserts that the accident was not caused by a defect in the seat assembly of his automobile, if any such defect existed, but was caused by one or more of the following acts of wrongful driving conduct on the part of the Plaintiff:

“1. That the Plaintiff failed to keep a proper lookout for the traffic signals and approaching vehicles and that said failure was the proximate cause of the alleged accident and resulting injuries.

“2. That the Plaintiff failed to yield the right of way at the intersection to the Mustang driven by Mr. Torrez and that said failure was the proximate cause of the alleged accident and resulting injuries.

“3. That the Plaintiff failed to stop in obedience to the traffic signals which were operating at the intersection and that said failure was the proximate cause of the alleged accident and resulting injuries.

“4. That the Plaintiff failed to keep his car under proper control as he approached the intersection when he knew there were traffic signals in operation and that said failure was the proximate cause of the alleged accident and resulting injuries.

“5. That the Plaintiff failed to exercise ordinary care for his own safety and that such failure was the proximate cause of the alleged accident and resulting injuries.

“B. That Defendant further asserts the following affirmative defense:

“1. That Plaintiff was contributorily negligent in that Plaintiff discovered any defect of which he complains but nevertheless unreasonably used the product and assumed the risk while he knew of the defect and danger and that such contributory negligence by the Plaintiff was a proximate cause of the alleged accident and resulting injuries.

“The Defendant has the burden of proving the affirmative defense and that said defense was a proximate cause of the alleged accident and resulting injuries.

“If Defendant’s assertions of wrongful driving conduct by Plaintiff as stated above in A-l, 2, 3, 4 or 5 did occur, but were proximately caused by a defect in the product, that is, the seat assembly of the VW, then the said alleged acts of wrongful driving conduct would not be the proximate cause of the accident and therefore would not bar a recovery. (Emphasis ours).

“If you find that Plaintiff has proved those claims required of him, including proximate causation, then your verdict should be for the Plaintiff.

“If on the other hand, you find that any one of the claims required to be proved by the Plaintiff has not been proved, including proximate causation, or that any one of Defendant’s assertions of wrongful driving has been proved, and that such was the proximate cause of the accident, or, if you find that Defendant’s affirmative defense has been proved and that such was a proximate cause of the accident, then your verdict should be for the Defendant.”

The jury here was not specifically instructed as in Bendorf I, that plaintiff’s wrongful driving was contributory negligence, an affirmative defense. Plaintiff objected to the above quoted instruction stating that “ * * * it instructs the jury that if the plaintiff’s behavior was the proximate cause, they cannot recover. * * * ” The jury was also given several instructions on plaintiff’s duty to use ordinary care. Plaintiff claims these instructions erroneously injected the issue of contributory negligence into the case.

Assuming, without deciding, that plaintiff is correct in his assertions we find that reversal of this case is not required. The jury was told in instruction No. 1 that if plaintiff’s wrongful driving was the proximate cause of the accident then their verdict should be for the defendant. The definition of proximate cause given to the jury states: “[t]he proximate cause * * * need not be the only cause, nor the last nor the nearest cause. It is sufficient if it occurs with some other cause * * * ” No other instruction on proximate cause was given. It is clear that by applying the proximate cause instruction given to instruction No. 1 the jury would have been required to find for the defendant even if they found that plaintiff’s wrongful driving and the defective seat were concurring causes of the accident.

However, instruction No. 1 was not erroneous. The proximate cause instruction was erroneous because it allowed the jury to elevate plaintiff’s wrongful driving to contributory negligence as an affirmative defense and clearly was an inappropriate instruction in this case. Bendorf I.

The proximate cause instruction was not only unobjected to by the plaintiff but it had been requested by the plaintiff. It thus became the law of the case. Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973); rev. on other grounds, 86 N.M. 141, 520 P.2d 869 (1974); Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950); Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276 (1933). Plaintiff cannot now complain of the contributory negligence aspect of this case when he requested the erroneous instruction which was given to the jury. Territory v. Yarberry, 2 N.M. 391 (Gild.1883); See Cochran v. Gordon, 77 N.M. 358, 423 P.2d 43 (1967); Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971).

Trial Court’s Conduct

Plaintiff contends that certain comments by the trial court were so prejudicial that he was denied a fair and impartial trial. The passages cited by the plaintiff do show that some rather severe comments were directed towards plaintiff’s counsel. As to the propriety of the trial court’s conduct our Supreme Court stated in In re Will of Callaway, 84 N.M. 125, 500 P.2d 410 (1972) the following guidelines:

“The tenor of the Judicial Canons of Ethics indicates that a judge may properly intervene in the trial of a case to promote expedition and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience or participation in the examination of witnesses or a severe attitude on his part toward witnesses or counsel may tend to prevent the proper presentation of the cause or the ascertainment of the truth therein. * * * J>

The question is whether the conduct of the trial court was so prejudicial to plaintiff’s ease as to require a new trial. It is obvious that “ . . .a cold bare transcript sometimes does not reflect the total atmosphere of a trial.” Callaway, supra. We, therefore, cannot substantiate plaintiff’s claim of “reproachful looks” coming from the trial court. See State v. Gurule, (Ct.App.) 90 N.M. 87, 559 P.2d 1214, decided January 4, 1977. The record does indicate that critical remarks by the trial court were directed to defense counsel as well as plaintiff’s counsel. After examining the record of proceedings prior to the trial court’s remarks it is apparent that many of the remarks were entirely justified. The jury was also instructed by the trial court not to let the court's remarks influence their decision. We hold that the conduct of the trial court, when considered in context, was not so prejudicial so as to require a new trial.

Compensation of Expert Witness

On cross-examination plaintiff’s counsel questioned one of the defendant’s expert witnesses as to the amount of compensation he had received from the defendant. The witness responded by saying he charged “$95.00 an hour.” When the witness was asked if this meant that in 1974 he received $180,000.00 the trial court sustained defendant’s objection that the answer would be immaterial. Plaintiff claims this was reversible error.

It is proper to question a witness as to his payment for testifying as an expert and a trial court’s refusal to allow such questioning may constitute reversible error. State v. Clarkson, 58 N.M. 56, 265 P.2d 670 (1954). However, the decision to admit or exclude evidence rests within the sound discretion of the trial court and the trial court’s decision will not be overturned absent an abuse of discretion. State v. Bell, 90 N.M. 134, 560 P.2d 925, decided March 1, 1977. The record does not disclose an abuse of discretion. Further, even assuming error, it was harmless. Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966). Plaintiff was afforded the opportunity of soliciting testimony from the expert that he was a paid witness.

Seat Track Mechanism

A reasonable inference is a conclusion arrived at by a process of reasoning. This conclusion must be a rational and logical deduction from facts admitted and established by the evidence, when those facts are viewed in the light of common experience. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 80 N.M. 591, 458 P.2d 843 (Ct.App.1969).

Over plaintiff’s objections of relevancy and materiality the trial court allowed the introduction of defendant’s testimony concerning how the Volkswagen seat track mechanism operated subsequent to the accident. The testimony showed that subsequent users of the seat track had no problems with the seat track slipping or otherwise malfunctioning. There is no indication from the testimony that the seat track mechanism was altered after the accident.

This testimony gave rise to a reasonable inference that the seat track mechanism was working properly before the accident. Ferran v. Jacquez, 68 N.M. 367, 362 P.2d 519 (1961). The trial court properly admitted the testimony. It was relevant and material on the claim of a defective seat track mechanism.

Prior Consistent Statements

Plaintiff’s trial testimony was that he had run the red light because the defective seat had caused him to lose control of the car.

In his opening statement defense counsel stated that the evidence would show that immediately after the accident plaintiff had stated to two people that he had missed the red light because he had been reaching over towards his child who had fallen off the seat. The evidence adduced at trial indicated that plaintiff had made the alleged statements. Plaintiff had no recollection of the incident and did not deny making the statements.

Plaintiff was refused permission to introduce testimony of two witnesses who would have testified that two or three hours after the accident and again two months after the accident plaintiff had made statements similar to his trial testimony as indicated above. The trial court ruled the statements were inadmissible hearsay. Plaintiff contends the statements are not hearsay and should have been admitted under Rules of Evidence 801(d)(1)(B) which states in part:

“A statement is not hearsay if * * * [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive * * *

As with the two previous points, the decision to admit or exclude evidence pursuant to Rule 801(d)(1)(B), supra, is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. State v. Bell, supra.

We hold that the trial court properly exercised its discretion. In so holding we note: (1) the use of the prior inconsistent statement did not necessarily imply that plaintiff’s trial testimony was recently fabricated or was made from an improper influence or motive. Coltrane v. United States, 135 U.S.App.D.C. 295, 418 F.2d 1131 (1969); Hanger v. United States, 398 F.2d 91 (8th Cir. 1968); 4 Wigmore, Evidence, § 1126 (1972); McCormick, Evidence, § 49 (1972); (2) plaintiff is obviously an interested party in this case and allegedly made the prior consistent statements after the accident and at a time when a motive was present for the plaintiff to deny any wrong doing. United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); United States v. Dorfman, 470 F.2d 246 (2d Cir. 1972); see Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56 (2d Cir. 1972); and (3) the prior consistent statements were made after the prior inconsistent statement. Felice v. Long Island Railroad Company, 426 F.2d 192 (2d Cir. 1970); Ayres v. Keith, 355 S.W.2d 914 (Mo.1962); McCormick, supra; see Applebaum v. American Export Isbrandtsen Lines, supra.

Affirmed.

IT IS SO ORDERED.

HERNANDEZ, J., concurs. SUTIN, J., dissents.