RABINO WITZ, Justice.
In this action Wilson McLaney sued the Otis Elevator Company for personal injuries allegedly caused by Otis Elevator’s negligent maintenance of a terminal elevator at Anchorage International Airport.
After a trial by jury in which McLaney obtained a favorable verdict, Otis Elevator appealed.
At the trial there was evidence adduced which tended to establish the following: On December 6, 1961, the day the accident occurred, McLaney was employed by Pacific Northern Airlines in the capacity of a ground service employee at the Anchorage International Airport. At the time in question McLaney was in the process of taking
an empty baggage cart from the lower level to the upper level of the airport for the purpose of fixing a flat tire on the cart. In order to move the cart to the upper level, McLaney used the terminal’s freight elevator. When he arrived at the upper level, McLaney experienced difficulty in opening the elevator’s inner mesh door which had jammed after partially lifting (the mesh door was part of the elevator and moved with it). After McLaney managed to open the mesh door as far as possible, he then attempted to open the stationary — horizontally — bi-parting doors which were located at the upper level of the elevator shaft. McLaney also experienced difficulty in opening the bi-parting doors finding them “frozen stuck.” After prying the bi-parting doors approximately eight inches apart with a 2 x 4, he placed one foot on the lower door and while pushing up with his hands on the upper door and down with his foot on the lower door, he fell. In the course of his fall McLaney straddled the top of the lower door sustaining injuries to his pelvic and genital regions.
Due to his failure to answer fully certain interrogatories which Otis Elevator had propounded prior to trial, the lower court restricted the proof that McLaney could offer at trial regarding the question of liability. In effect, McLaney’s proof was limited, as to Otis’ claimed negligence, “to an alleged failure to lubricate the doors in question properly.”
On the question of Otis’ alleged failure to properly lubricate, the plaintiff below offered testimony to the effect that: The bi-parting doors in question were more difficult to open in the winter than in the summer. That due to the difficulty usually encountered in opening these upper level bi-parting doors, it was customary for a person attempting to open them to push down on the lower door with his feet and to simultaneously pull up on the upper door with his hands. McLaney himself testified that the day after the accident occurred he examined the bi-parting doors and that:
there was thick grease looked like it was dried out and it was hard as * * * pretty hard, you know, just looked like dried out and dusty like or something and hard, just * * * just mighty hard, and be in big lumps in spots you know.
The doors in question moved on runners which Otis Elevator, pursuant to the terms of its contract with the State of Alaska (owner of Anchorage International Airport and the elevator in question), was required to “regularly and systematically examine * * * [and] * * * lubricate as required.”
In addition to McLaney’s testimony there was other testimony as to the lack of lubricants in the bi-parting doors’ runners at various times prior to the accident. Other witnesses testified to observing “grease” and to the “stiffness” and “hardness” of the lubricants used in the runners.
Due to the erroneous admission into evidence of hearsay complaints pertaining to the bi-parting doors, as well as reputation evidence concerning condition of the elevator’s bi-parting doors, we have concluded that a new trial is required. These evi-dentiary issues will be disposed of subsequent to discussion of certain other issues that appellant has raised.
In this appeal, Otis urges as error the lower court’s refusal to grant its motions for directed verdict and for judgment notwithstanding verdict. We have concluded that no error was committed by the lower court in denying Otis’ motions for directed verdict and judgment notwithstanding verdict. In determining whether error was committed in relation to these motions, this court views the evidence in its strongest light in favor of the party against whom the motions were made
Review of the record convinces us that a jury question was presented as to the issues
of Otis Elevator’s negligence and proximate cause because fair-minded jurors could differ as to the conclusions of fact that might be drawn from the evidence which was presented as to these questions.
In' short we are satisfied that whether Otis’ lubrication of the bi-parting doors was negligent and whether such negligence proximately caused McLaney’s injuries were questions for the jury to resolve under appropriate instructions from the trial judge.' We cannot say that fair-minded jurors might not have drawn the inferences that Otis failed to properly lubricate the runners and that such failure proximately caused'the accident in question.
Appellant Otis Elevator also argues as grounds for reversal the trial court’s failure to grant a new trial due to alleged misconduct on the part of appellee’s counsel. Appellant primarily asserts that the misconduct of appellee’s counsel consisted in the intentional and repeated propounding of questions which sought to elicit inadmissible testimony.
We agree with the authorities cited by appellant to the effect that the granting of a new trial is an appropriate remedy where improper questioning has occurred in a jury trial.
On the other handj our review of the record con-vincés us that the trial judge was correct in refusing to grant Otis a new trial on the asserted ground of counsel’s misconduct. The trial judge, in his discretion, is best able to determine whether there was any intentional misconduct on the part of Mc-Laney’s counsel and to evaluate the probable impact of counsel’s questioning upon the jury in ruling upon a motion for new trial. We have held on other occasions that the granting or refusing of a motion for a new trial' rests in the sound discretion of the trial judge and that we will refrain from interfering with the exercise of such discretion except “in the most exceptional circumstances to prevent a miscarriage of justice.”
Our reading of the record fails to disclose such exceptional circumstances as would lead us to reverse the trial judge’s denial of a new trial on the grounds of counsel’s improper questioning.
Appellant Otis Elevator additionally urges as error the trial court’s admission into evidence of the deposition of Harlin McDowell, a witness for plaintiff. Appellant argues there was no showing that this witness was at a greater distance than 100 miles from the place of trial or that Mc-Laney, despite diligent efforts on his part, could not procure the attendance of the witness by subpoena.
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RABINO WITZ, Justice.
In this action Wilson McLaney sued the Otis Elevator Company for personal injuries allegedly caused by Otis Elevator’s negligent maintenance of a terminal elevator at Anchorage International Airport.
After a trial by jury in which McLaney obtained a favorable verdict, Otis Elevator appealed.
At the trial there was evidence adduced which tended to establish the following: On December 6, 1961, the day the accident occurred, McLaney was employed by Pacific Northern Airlines in the capacity of a ground service employee at the Anchorage International Airport. At the time in question McLaney was in the process of taking
an empty baggage cart from the lower level to the upper level of the airport for the purpose of fixing a flat tire on the cart. In order to move the cart to the upper level, McLaney used the terminal’s freight elevator. When he arrived at the upper level, McLaney experienced difficulty in opening the elevator’s inner mesh door which had jammed after partially lifting (the mesh door was part of the elevator and moved with it). After McLaney managed to open the mesh door as far as possible, he then attempted to open the stationary — horizontally — bi-parting doors which were located at the upper level of the elevator shaft. McLaney also experienced difficulty in opening the bi-parting doors finding them “frozen stuck.” After prying the bi-parting doors approximately eight inches apart with a 2 x 4, he placed one foot on the lower door and while pushing up with his hands on the upper door and down with his foot on the lower door, he fell. In the course of his fall McLaney straddled the top of the lower door sustaining injuries to his pelvic and genital regions.
Due to his failure to answer fully certain interrogatories which Otis Elevator had propounded prior to trial, the lower court restricted the proof that McLaney could offer at trial regarding the question of liability. In effect, McLaney’s proof was limited, as to Otis’ claimed negligence, “to an alleged failure to lubricate the doors in question properly.”
On the question of Otis’ alleged failure to properly lubricate, the plaintiff below offered testimony to the effect that: The bi-parting doors in question were more difficult to open in the winter than in the summer. That due to the difficulty usually encountered in opening these upper level bi-parting doors, it was customary for a person attempting to open them to push down on the lower door with his feet and to simultaneously pull up on the upper door with his hands. McLaney himself testified that the day after the accident occurred he examined the bi-parting doors and that:
there was thick grease looked like it was dried out and it was hard as * * * pretty hard, you know, just looked like dried out and dusty like or something and hard, just * * * just mighty hard, and be in big lumps in spots you know.
The doors in question moved on runners which Otis Elevator, pursuant to the terms of its contract with the State of Alaska (owner of Anchorage International Airport and the elevator in question), was required to “regularly and systematically examine * * * [and] * * * lubricate as required.”
In addition to McLaney’s testimony there was other testimony as to the lack of lubricants in the bi-parting doors’ runners at various times prior to the accident. Other witnesses testified to observing “grease” and to the “stiffness” and “hardness” of the lubricants used in the runners.
Due to the erroneous admission into evidence of hearsay complaints pertaining to the bi-parting doors, as well as reputation evidence concerning condition of the elevator’s bi-parting doors, we have concluded that a new trial is required. These evi-dentiary issues will be disposed of subsequent to discussion of certain other issues that appellant has raised.
In this appeal, Otis urges as error the lower court’s refusal to grant its motions for directed verdict and for judgment notwithstanding verdict. We have concluded that no error was committed by the lower court in denying Otis’ motions for directed verdict and judgment notwithstanding verdict. In determining whether error was committed in relation to these motions, this court views the evidence in its strongest light in favor of the party against whom the motions were made
Review of the record convinces us that a jury question was presented as to the issues
of Otis Elevator’s negligence and proximate cause because fair-minded jurors could differ as to the conclusions of fact that might be drawn from the evidence which was presented as to these questions.
In' short we are satisfied that whether Otis’ lubrication of the bi-parting doors was negligent and whether such negligence proximately caused McLaney’s injuries were questions for the jury to resolve under appropriate instructions from the trial judge.' We cannot say that fair-minded jurors might not have drawn the inferences that Otis failed to properly lubricate the runners and that such failure proximately caused'the accident in question.
Appellant Otis Elevator also argues as grounds for reversal the trial court’s failure to grant a new trial due to alleged misconduct on the part of appellee’s counsel. Appellant primarily asserts that the misconduct of appellee’s counsel consisted in the intentional and repeated propounding of questions which sought to elicit inadmissible testimony.
We agree with the authorities cited by appellant to the effect that the granting of a new trial is an appropriate remedy where improper questioning has occurred in a jury trial.
On the other handj our review of the record con-vincés us that the trial judge was correct in refusing to grant Otis a new trial on the asserted ground of counsel’s misconduct. The trial judge, in his discretion, is best able to determine whether there was any intentional misconduct on the part of Mc-Laney’s counsel and to evaluate the probable impact of counsel’s questioning upon the jury in ruling upon a motion for new trial. We have held on other occasions that the granting or refusing of a motion for a new trial' rests in the sound discretion of the trial judge and that we will refrain from interfering with the exercise of such discretion except “in the most exceptional circumstances to prevent a miscarriage of justice.”
Our reading of the record fails to disclose such exceptional circumstances as would lead us to reverse the trial judge’s denial of a new trial on the grounds of counsel’s improper questioning.
Appellant Otis Elevator additionally urges as error the trial court’s admission into evidence of the deposition of Harlin McDowell, a witness for plaintiff. Appellant argues there was no showing that this witness was at a greater distance than 100 miles from the place of trial or that Mc-Laney, despite diligent efforts on his part, could not procure the attendance of the witness by subpoena.
The record discloses that a subpoena was issued on July 16, 1964, requiring the witness Harlin McDowell to appear in the superior court in Anchorage on the same day at 2:00 P.M. A Not Found Return was filed on July 16, 1964. This return reads in part that after “due search and diligent inquiry” the process server was unable to find the witness in the Third Judicial District but that he was informed the witness was “working north of Willow, Alaska.” On July 17, 1964, plaintiff below offered McDowell’s deposition into evidence under Rule 26(d) (3), [b] and [d]. The trial court deferred ruling. Subsequently in the trial plaintiff again moved to have the deposition of Harlin McDowell read into evidence. In addition to the sub-subsections of Rule 26(d) (3) previously cited, counsel for plaintiff, at this time, indicated he was now relying upon Rule 26(d) (3) [e].
At this second offering of the McDowell deposition, counsel for McLaney stated in part:
And I also suggest that the witness is probably * * * in all probability although I’m not * * * I’m unable to prove it at this moment * * * more than a hundred miles from Anchorage since the return indicates that he’s north of Willow.
In objection to the admissibility of the deposition, counsel for Otis argued:
We would object to the use of the deposition, Your Honor, on two grounds: (1) that there is no showing that the * * * that sub-paragraph (d) has been complied with. There’s no showing and I will require a showing that the place he says his witness is, is beyond a hundred miles; secondly, that the deposition of this man has been taken and is simply cumulative of prior testimony of the other witnesses, repiti-tious [sic] and unless there is something particularly different about this testimony that is to be shown.
The trial court then overruled Otis’ objections to the McDowell deposition.
We agree with appellant that the record does not show that the witness McDowell was more than 100 miles from Anchorage at the time the trial was taking place. Nor do we find in the record any exceptional circumstances which would permit the use of the deposition under Rule 26(d) (3) [e]. Although a stronger showing of due diligence on appellee’s part in attempting to serve McDowell might'have been required, we are not convinced that this case presents an appropriate occasion to interfere with the trial judge’s discretion in regard to his permitting the deposition to be read. We, therefore, are of the opinion that, under the provisions of. Rule 26(d) (3) [d], the trial judge did not err in admitting into evidence the deposition of Harlin McDowell.
We are also of the opinion that those portions of the McDowell deposition which were admitted into evidence were
merely cumulative of other evidence that plaintiff introduced and that if any error was committed in permitting McDowell’s deposition to be read, it was in the nature of harmless error. See Civil Rule 61
and the following authorities in regard to harmless error: Meyst v. East Fifth Ave. Serv. Inc., 401 P.2d 430, 437 (Alaska 1965); Alaska Brick Co. v. McCoy, 400 P.2d 454, 456 (Alaska 1965) ; Mitchell v. Knight, 394 P.2d 892, 896 (Alaska 1964) ; Zerbinos v. Lewis, 394 P.2d 886, 889-90 (Alaska 1964) ; Davidsen v. Kirkland, 362 P.2d 1068, 1069-1070 (Alaska 1961).
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
[e] upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
Appellant further contends that the trial court erred in admitting hearsay-reputation evidence as to the elevator’s operation. We are of the opinion that error was committed and that the admission of such evidence was prejudicial rather than harmless error. Illustrative of the instances where appellant contends the trial court erred in admitting hearsay-reputation evidence are the following excerpts from the testimony of two of plaintiff’s witnesses, Paul Adamson and Lawrence W. Bowles.
While on direct examination, Paul Adam-son testified as follows:
Q Then, are you able to state, Mr. Adamson, what the status of the elevator was in the discussions or information that was known to you among the crews, etc.?
MR. THORSNESS: Object to as hearsay.
Q Well, let me ask you this. Did you hear complaints from other personnel with whom you were working? MR. THORSNESS : Same objection.
MR. TALLMAN: I think that’s a proper question, Your Honor..
THE COURT: * * * (continuing) I’ll overrule the objection.
Q I didn’t understand your answer.
A Yes.
Q. Are you able to indicate to what extent the other personnel discussed this particular elevator or complained about this elevator without stating what their particular complaints were?
MR. THORSNESS : May I have a continuing objection on this also, Your Honor?
THE COURT: I’m going to sustain that objection to this line of particular question as to whether or not the other people may have discussed it.
Q Can you state * * * then let me ask you this * * * can you state to what extent the difficulty in operating the elevator was known among the crew that you worked with?
THE COURT: Now this, you understand, is being limited to prior to December of 1961.
Q * * * (continuing) Prior. Pri- or to December 6thj 1961.
A Well, myself, before this date, I know ever since I’ve been there it has been, off and on, hard to operate.
Q Well, the question was, was the knowledge of the other crew members or the extent to which it was known among other crew members, is what I’m referring to ?
A Well, it was very difficult for them also.
Q Well, I mean, did they know that
*
* *
A Right.
The following took place while Lawrence W. Bowles was testifying:
Q Do you know whether or not the crew discussed the operation of the elevator ?
A Oh, I heard them, yes.
Q And, are you able to state without stating what was actually said, are you able to state what the degree of knowledge that the elevator was difficult to open * * * operate was, prior to December 6th, 1961, among the crews that you worked with?
MR. THORSNESS: I object to the form of the question. I think it asks for an opinion of the witness, as I understand the question.
MR. TALLMAN: No. I don’t want bis opinion. I just want what he knows.
A You mean the condition on how it operated?
Q No, how well known this condition was among the crew members?
A Well, I’ve heard them discuss it several times.
Q And with respect to the people under you, to what extent did you say that they complained ?
A Well, they complained to quite a few people quite often.
Q About the door sticking, is that right ?
A Yes.
Admission into evidence of testimony of similar out-of-court complaints concerning the elevator’s condition and evidence pertaining to the reputation of the elevator occurred during the testimony of four other witnesses for plaintiff.
Professor McCormick writes that:
Reputation is a composite description of what the people in the community have said and are saying about a matter. A witness who testifies to reputation testifies to his generalized memory of a series of out-of-court statements. Whether reputation is hearsay depends on the same tests we have applied to evidence of particular out-of-court statements. * * ⅜
Applying again the general definition we may conclude that evidence of reputation is hearsay only when offered to-prove the truth of the fact reputed and hence depending for its value on the veracity of the collective asserters.
⅜ * * Evidence of reputation, not falling within the established exceptions, when offered to prove the fact reputed, is constantly being excluded as hearsay.
The fact that the various witnesses had personal knowledge of out-of-court complaints about the elevator’s doors or per
sonal knowledge of the reputation of the elevator’s operation did not change the hearsay nature of this evidence. This hearsay evidence as to reputation and out-of-court complaints was offered to prove the facts as to the manner in which the doors in question functioned. The record further shows that at no point during the trial, or in the trial court’s instructions to the jury, was the jury’s potential use of this evidence limited.
Under the circumstances, we are of the opinion that the jury could well have relied upon this inadmissible hearsay evidence to draw the inference that Otis negligently, failed to lubricate the elevator’s bi-parting doors. Although, as indicated previously, we have concluded that plaintiff’s evidence (excluding this hearsay-reputation evidence) was sufficient to withstand Otis’ motions for directed verdict and judgment notwithstanding verdict, we are of the further opinion that admission of this type of evidence was so prejudicial as to require a new trial.
The final point appellant raises is that the trial court erroneously admitted testimony concerning the changing by Otis, after the accident, of the lubricant it used on the runners of the elevator’s bi-parting doors.
We have previously held that this type of evidence is inadmissible.
The trial court’s admission into evidence of Otis’ change of lubricant subsequent to the date of the accident was improper. In light of our previous ruling on the admission of hearsay it is unnecessary to decide whether the admission of this evidence as to the change of lubricant in and of itself would require a new trial in this appeal.
The judgment and verdict are set aside and the cause remanded for a new trial.
Reversed.