Bomar v. United Resort Hotels, Inc.

497 P.2d 898, 88 Nev. 344, 1972 Nev. LEXIS 467

• Court: Nevada Supreme Court
• Decided: June 7, 1972
• Docket: No. 6591
• Status: Published

Opinions

OPINION

By the Court, Thompson, J.:

Bomar brought suit against United Resort Hotels, Inc., d.b.a. Stardust Hotel, to recover damages for injuries sustained when he fell on a step exiting from the hotel. The jury found against him and this appeal followed.

1. The trial court precluded plaintiff’s counsel from cross-examining a defense witness to show that the step was painted by the hotel shortly after the accident. This is asserted to be reversible error. Although acknowledging that safety measures taken after the accident by the defendant are generally not admissible to prove antecedent negligence or an admission of negligence, Alamo Airways, Inc. v. Benum, 78 Nev. 384, 392, 374 P.2d 684 (1962), this rule, he contends, does not here govern, since defense counsel “opened the door” to such cross-examination when he asked a defense witness whether there had been any change in the step since 1955, and the witness responded “no sir, there hasn’t.”

In our view the door was opened, however slightly, and counsel should have been allowed to pursue his cross-examination to contradict or impeach the testimony given by the adversary witness. This is a recognized exception to the general rule expressed in Alamo Airways, Inc. v. Benum, supra. Daggett v. Atchinson, Topeka and Santa Fe Ry. Co., 313 P.2d 577 (Cal. 1957); Reynolds v. Maine Mfg. Co., 128 A. 329 (N.H. 1925); Lombardi v. Yulinsky, 119 A. 873 (NJ. 1923); Jefferson v. City of Raleigh, 140 S.E. 76 (N.C. 1927).

It does not automatically follow, however, that the error thus committed affected the substantial rights of the plaintiff Bomar. Indeed, the record contains references to the fact that the step was not painted at the time of the accident, that it was subsequently painted and that a recommended procedure would have been to paint it. In these circumstances the error in forbidding cross-examination on the subject to impeach an adversary witness must be deemed harmless. NRCP 61. That evidence was before the jury in other ways.

2. The jury could not agree whether the defendant was negligent and passed on to the question of the plaintiff’s contributory negligence, finding by a nine to three vote, that he was contributorily negligent and precluded from recovery. In short, the jury attempted to resolve the issues in the sequence suggested by the court but was unable to reach agreement on the first issue. We cannot fault the jury for proceeding to the second issue and deciding the litigation.

Affirmed.

Zenoff, C. J., and Batjer, J., concur.