Jackson v. Wyatt Bros. Cement Co.

203 N.W.2d 360, 295 Minn. 145, 1972 Minn. LEXIS 1125
CourtSupreme Court of Minnesota
DecidedDecember 29, 1972
DocketNo. 43463
StatusPublished
Cited by1 cases

This text of 203 N.W.2d 360 (Jackson v. Wyatt Bros. Cement Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. Wyatt Bros. Cement Co., 203 N.W.2d 360, 295 Minn. 145, 1972 Minn. LEXIS 1125 (Mich. 1972).

Opinion

Todd, Justice.

Action for injuries sustained by Allan G. Jackson as a result of a truck-bicycle accident and for consequential damages sustained by his father, George A. Jackson. The jury returned a verdict finding plaintiff Allan Jackson 75 percent negligent. The trial court denied plaintiffs’ motion for a new trial on the ground that errors of law occurred at the trial, and plaintiffs appeal. We reverse.

The accident occurred on August 29, 1966, when plaintiff Allan Jackson (Allan) was 12 years old. James Mclnnes (James), Mark Johnson (Mark), and two other friends were riding their bicycles in an easterly direction on Lincoln Street and approached defendant’s truck from the rear as it was approaching the intersection with Highway No. 65 in Spring Lake Park, Minnesota. One of the boys crossed the street. The inter[147]*147section was controlled by traffic signals, and the truck had either stopped or was barely moving, waiting for the signal to change.

Mark, James, and one of the other boys stopped behind the truck. Allan pulled up alongside the right side of the truck just to the rear of the cab, stopped his bike, and straddled it. The truck then proceeded to make a right turn. The driver testified he had his turn signals on and there is no testimony refuting this although some of the witnesses did not recall seeing the turn signals. In making the turn, the driver pulled out into the intersection and then swung back to his right because of the size of the truck, a large, semi-trailer cement truck. Apparently the rear wheels caught Allan as he was either standing or beginning to move his bike into the intersection. No witness actually saw the truck come in contact with Allan, and he has no recollection of the events regarding the accident.

Shortly after the accident, an investigator on behalf of defendant contacted James and Mark. He solicited statements from both of them. In the statement taken from James by the investigator, there appears the following sentence: “I don’t think the driver could have seen Allan and I think Allan put himself in a dangerous position.”

James testified at trial, and on cross-examination was asked why he did not come up alongside the truck. Despite objection by plaintiffs’ counsel, the court permitted the question to stand, and James indicated in his answer that there was no reason, “We just stopped behind it.” Counsel for defendant pursued this line of questioning despite repeated objection, and James would indicate only that he and one of the other boys had stopped behind the truck probably because Mark was in front of them.

Counsel for defendant then sought to impeach James’ testimony by use of his prior statement. Counsel for plaintiffs again objected, but the court allowed the question and the reading of the answer from the prior statement as impeaching testimony. Subsequent to James’ testimony, counsel for plaintiffs moved for a mistrial. The motion was denied.

[148]*148Mark was called to the stand to testify for plaintiffs and on cross-examination was also asked, “Why didn’t you go around the right-hand side of the truck?” Counsel for plaintiffs again objected, but the court instructed the witness to answer, and he stated, “Well, I felt it was a rather precarious place to be with a long truck making a right turn, to be on the right-hand side like that.” In response to an additional question, “By precarious you mean dangerous?” he answered, “Yes, it was rather dangerous.” Counsel for defendant stressed this testimony in final argument. The jury returned a verdict assessing Allan’s negligence at 75 percent and that of defendant’s truckdriver at 25 percent.

Plaintiffs contend that the trial court erred in allowing counsel to question Mark regarding the reason he did not go alongside the truck since his conclusion that it was dangerous was inadmissible opinion testimony and an invasion of the province of the jury. Plaintiffs further assert that the trial court erred in the use of James’ prior statement for impeaching purposes since the original evidence would not be admissible, again as a conclusion of the witness and invasion of the province of the jury.

The defendant offers three theories under which the testimony should be admitted despite the exclusionary rule regarding opinion testimony, namely, (a) that the opinion is merely a shorthand way of giving facts that cannot otherwise be communicated to the jury; (b) that it was relevant testimony on the standard of care of a minor of plaintiff’s age, training, and experience; and (c) that even if erroneous, its introduction was not prejudicial because the jury had before it all the facts supporting the opinion.

Defendant’s first theory for admissibility is based on Wig-more’s criticism of the opinion rule as commonly applied. Wig-more strongly criticized the attempt to differentiate “fact” from “opinion.” He accepted the theory (but not the common application) of the test that lay witness’ inferences—

“* * * are inadmissible when the jury can be put into a posi[149]*149tion of equal vantage for drawing them, — in other words, when by the mere words and gestures of the witness the data he has observed can be so reproduced that the jurors have those data as fully and exactly as the witness had them at the time he formed his opinion.” 7 Wigmore, Evidence (3 ed.) § 1924.

This rule has been long accepted in Minnesota. In Lestico v. Kuehner, 204 Minn. 125, 131, 283 N. W. 122, 126 (1938), this court criticized some rulings of the trial court for being too restrictive on testimony challenged as calling for a conclusion of the witness:

“* * * To illustrate, defendant was asked, on his direct examination : ‘And did you observe whether — where you made the sudden turn, where the car had changed its direction from the tire marks?’ This was excluded ‘as calling for the conclusion of the witness.’ That ruling was wrong because the question plainly asked for a fact within the personal observation of the witness.
“True, mere conclusion of witnesses, other than those properly admitted as opinion testimony, are not competent. But many questions permit, or are answered by, what is in form a conclusion although in essence a statement of fact. Then, there are numerous facts * * * which can only be narrated by a statement in form an opinion. As to other than competent opinion, the problem is to distinguish between that mental process which is a mere conclusion and that other and different one which is recollection of facts and an attempt to state them.” (Italics supplied.)

Thus, this court has admitted “opinion” testimony that a truck was moving rather than standing still. “The observations of witnesses under similar circumstances have been frequently received as to questions of speed, position, direction, motion, and like matters.” Gruenhagen v. Brelje, 252 Minn. 203, 208, 89 N. W. 2d 738, 742 (1958). These questions have in common the fact that there is no way of describing them short of the ultimate “opinion”; there is no way to communicate the attributes of “move[150]*150ment”, for example, other than to state that an object is moving.

The question of dangerousness, on the other hand, differs both in the fact that the underlying attributes creating the dangerous condition can be communicated and, perhaps more importantly, the question requires the value judgment of the witness in order to reach the conclusion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Carpenter v. Mattison
219 N.W.2d 625 (Supreme Court of Minnesota, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
203 N.W.2d 360, 295 Minn. 145, 1972 Minn. LEXIS 1125, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-wyatt-bros-cement-co-minn-1972.