its consequence of barring him from presenting the jury with "the big picture" of the accident. It is a very natural inclination of plaintiffs' counsel in personal injury cases to emphasize the severity of the impact in enhancement of damages, but damages was not the issue being tried before the jury at that stage of the trial. Because of the time and effort spent by the court and counsel prior to trial in narrowing the issues and achieving stipulations as to many matters of fact, the court at that time felt impelled to interrupt the opening statement in order to protect its pretrial rulings on admissible evidence. We believe that this was an act properly within the discretion of the trial judge in the management of the trial.
It is to be noted that the plaintiffs were at no time barred from the introduction of admissible evidence but rather enjoyed the very substantial advantage of being able to present most of its evidence in rebuttal. Plaintiffs' counsel rested his case in chief after his opening statement, relying on his opportunity to develop evidence by cross-examination of defendant's witnesses and the offering of rebuttal testimony to refute the defendant's burden of proving itself free of negligence under the circumstances. An example of this advantage is shown by plaintiff's request to call the defendant's driver as on cross-examination in its case in chief. On defendant's objection to this offer the plaintiff refrained from calling the driver on cross-examination and had a full opportunity for cross-examination when the defendant presented this evidence.
All of the evidence which plaintiff might have sought to introduce was properly rebuttal material. Its introduction into plaintiffs' case in chief could only be for the purpose of anticipating the defense. It was admitted that plaintiffs' car was struck by defendant's truck, on the wrong side of the road, out of control and at an excessive speed. Plaintiffs' prima facie case has been made. He was struck on the highway under conditions that impose liability. The burden then falls upon the defendant to exculpate himself from each and every allegation of negligence that the plaintiff had pleaded, or theories of negligence which might be developed from the evidence, including improper maintenance, failure of inspection, and failure of defendant's driver to take proper precautions after the failure of the drive shaft and the brakes. The control of these matters is vested in the trial judge. We do not see how the plaintiffs can assert any prejudice from this control of the order of proof, except for the loss of the effect of presenting the jury with the "big picture" to emphasize the importance and extent of the injuries suffered by plaintiff, which was not the issue for trial at that time, albeit the same jury would pass on damages at a later date.
The plaintiffs had full opportunity to develop their other allegations of negligence respecting the condition and maintenance of the defendant's truck and the opportunities available to the driver of defendant's vehicle after loss of braking control of the vehicle. The ability of defendant's driver to take any action to stop the vehicle or avoid a collision at the bottom of the hill were fully developed in the evidence and argued to the jury.
One final contention of the defendant requires comment. On two occasions plaintiffs' counsel in cross-examining defendant's driver attempted to attack the credibility of this witness by the use of prior deposition testimony. The court explained to the jury the proper use of such prior testimony as an attack on the party's present credibility without the prior testimony being considered as substantive evidence on the issue at trial. The court interrupted to ask counsel how such prior testimony was inconsistent with present testimony and at one point remarked that the court didn't see the testimony as being inconsistent but on each occasion instructed the jury that the matter was for their determination. In this respect it is important to note that the court observed the demeanor and manner of testifying of the witness and found him to be a slow-talking, slow-thinking person, who was under obvious difficulty in testifying because of his verbal limitations and could easily be subject to confusion upon being questioned about his prior testimony. A full examination of the record of these incidents together with the court's instructions to the jury each time that such comment was made will reveal the nature of the answer given on the witness stand, the nature of the alleged impeaching question and answer and the instructions given by the court with respect to the jury's treatment of such impeaching evidence.
It was the court's purpose in making the remarks that were made to protect this witness from confusion. He was not properly referred to the text of the alleged inconsistent statement (Tr. p. 82) but was immediately asked: "Didn't you answer that it was a matter of days in the deposition that was taken of you?" The court directed counsel to read the prior alleged inconsistent statement. The present statement was that the witness couldn't say how long before the accident the truck was brought to the plant. In the prior deposition the witness answered the question in the same way, but upon being asked if it was a matter of days he answered "Yes".
The prior comment of the court occurred (Tr. pp. 77-78) when the witness was first attempted to be impeached by a prior deposition. The court then instructed the jury on the nature of deposition testimony and its uses, including impeachment, and the limitations of the considerations of impeaching testimony. When the impeaching testimony was read the court asked counsel how this differed from the testimony given on the stand, and after counsel's reply, instructed the jury that it was their function to determine if these answers were inconsistent.
We believe our actions were according to the guidance of Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 698, 77 L. Ed. 1321, 1324 :
"In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific, 283 U.S. 91, 95, 51 S. Ct. 383, 75 L. Ed. 857. In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination."
The Rules of Evidence for the United States Courts left this practice unchanged in the Federal courts, See 1 Weinstein's Evidence, Supreme Court Standard 107.
Finally, the plaintiff argues that the verdict is against the weight of the evidence. With this we cannot agree. It is clearly evident that the outcome of the trial was dictated by the quality of the defendant's expert witness as to the mechanical condition of the truck in question. There can be no doubt that this evidence completely overcame any of the evidence and the opinion expressed by plaintiffs' witness as to the reason for the mechanical failure and loss of control of the truck in question, including its prior maintenance and condition.
An appropriate order will be entered denying plaintiffs' motion for a new trial.
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