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Show PAGE Orderly procedure, whose proper purpose is the final settlement of controversies, requires that a party must present his entire case and his theory or theories of recovery to the trial court; and having done so, he cannot thereafter change to some different theory and thus at of litigation. tempt to keep in motion a merry-go-rou- I am unable to agree to the affirmance of the judgment entered in the court below. The defendant was drunk at the time he ran over and killed a little boy aged three years ten months. The chief of police of the town of Layton, Utah, who investigated the matter a few minutes after it occurred, testified that the defendant was drunk and did not seem to understand what he was talking to him about; that the defendant was quite vague and seemed to have only one thing in mind: that if he could just go home, the entire problem would be solved. The defendant testified that he was an alcoholic and at the time of the accident he would be classed as drunk. Two hours after he ran over the child, the alcoholic content of his blood was 0. 28 per cent by weight. He testified that he drank after the accident, but no one saw him do it, and the plaintiff, a highway patrolman, and the arresting officer and others were with him constantly from the time he stopped his automobile until the blood sample was taken. The chief of police of Layton City testified that the defendant told him that he had not had anything to drink after the accident. nd Plaintiff asserts that the trial court erred in giving an instruction on unavoidable accident. Instruction 20 provided: The law recognizes unavoidable accidents. An unavoidable accident is one which occurs in such a manner that it cannot justly be said to have been proximately caused by negligence as those terms are herein defined, in the event a party is damaged by an unavoidable accident, he has no right to recover, since the law requires that a person be injured by the fault or negligence of another as a prerequisite to any right to recover damages. The highway at the place in question was zoned for a speed of 40 U. C. A. 1953, provide miles per hour. Sections and a that posted speed is presumed lawful where there is no special hazard existing, but that speed shall always be controlled so as to avoid colliding with any person, etc., on or entering the highway. Here there was a special hazard: an overturned car on the west side of the highway, a highway patrol car with flashing red lights, six or eight cars parked on the east side I 41-6-- 46 In Calahan v. Wood this court cited the following principle: there are some situations where the evidence is susceptible of being so interpreted that an accident occurred without negligence on the part of anyone, and if it is reasonably susceptible of such interpretation, and a party requests it, the trial court commits no error in so advising the jury. !' . The statements of this court in Woodhouse v. Johnson applicable to the instant action: are equally the parties are entitled to have the jury instructed concerning their respective theories of the case, we are not persuaded that the trial court committed error which would justify reversal in giving it. If the accident happened as the defendant contends, . . . there is nothing further in the exercise of reasonable care that she should have done to have avoided the accident; and thus from her point of view, the accident would be unavoidable, and there could be no great harm in so advising the jury. In the instant action the main thrust of the defense was that from de- Plaintiff further urges that defendant's expert witness was permitted to give an opinion based on facts not in evidence. A hypothetical question was posed to Captain Pitcher, Highway Patrol, concerning the stopping distance of a vehicle based on the physical fact a, established by the evidence. On appeal, plaintiff challenges all the facts, and defendant in turn cites the record to establish the basis of each. However, at trial gikintiff' s objection was asserted on the ground that the hypothetical question concerned the stopping distance for a person with a normal reaction time, and he vigorously contended that there was no evidence to indicate that defendant's reaction would be normal but would be impaired by intoxication. of the highway, and several cars on the west side. There were a number of people around the overturned vehicle. In addition to these special hazards', which should alert one to danger, the defendant was so drunk that he himself ' ' was not only a hazard but a menace as well. trial court properly overruled plaintiff's objection. The hypothetical question properly presented the defense's theory of causation, namely, that the death of plaintiff's son was not proximately caused by the manner of operation of the vehicle. The defendant testified that he first saw the child when it was five feet in front of his right headlight. The fact is that before impact he laid down 40 feet plus the length of a car of brake marks. The reaction time of a drunk would be more than that of a normal person, so the defendant must have seen the child for an additional distance of 58 feet for each second of his reaction time. The child was 25 12 feet into the road from his father's car when he was hit, and there was nothing to prevent the defendant from seeing him while he traveled that distance. In my opinion the defendant was negligent as a matter of law for the reasons set out above. While the record before us does not show that plaintiff asked for a directed verdict, he did raise the question by a motion for a new trial. One wonders what would cause a jury to find as it did under the facts of this case. I think the answer is to be found in the instructions given and the rulings made by the court. The court gave an instruction as follows: A person in crossing the highway in the vicinity of this y to all accident was required by law to yield the vehicles on the roadway so near as to constitute an immediate hazard. You may consider this only in connection with the conduct of the defendant and the plaintiff. right-of-wa- The this court has long recognized that where the facts are in dispute, hypothetical questions may be framed either upon all the facts of the case, or upon facts which fairly represent the theory of the party producing the expert. . . . Finally, plaintiff contends that the trial court improperly limited of defendant's expert witness. Captain Pitcher. plaintiff's the defense witness so as to test his credibility, Plaintiff did knowledge and good faith. Plaintiff, however, reiterated the hypothetical question submitted by the defense except he substituted the reaction time of an intoxicated person for that of a normal one. The trial court sustained the cross-examinati- on ne objection of the defense, which was on the ground that the question went beyond the testimony given on direct examination. The latitude permitted in the of an expert witness is even wider than in the case of an ordinary opinion witness. No rule can be laid down that would determine the extent and limitation of allowable in every case. Generally speaking the matter must rest in the sound discretion of the judge trying the case. . . . cross-examinati- on cross-examinati- on Plaintiff has not established that the trial judge abused his discretion and thus that his ruling was prejudicial. Furthermore, plaintiff was given an opportunity to discuss the matter with the witness during a short recess and to determine whether he wished to call Captain Pitcher as his own witness. Under the foregoing circumstances there is no ground upon which to sustain his assertion of prejudicial error. The judgment of the defendant. trial court is affirmed; costs are awarded to WE CONCUR: R. L. Tuckett, Justice F. Henri Henriod, Justice J. Allan Crockett, Justice 48, The defendant said he had been driving 40 miles per hour but when he saw the overturned car and the parked automobiles on both sides of the highway, he took his foot off of the accelerator but did not know how much he slowed down. His car laid down brake marks of 80 feet for the front tires and 70 feet for the rear ones. The expert witness testified that when the brakes were applied, the car was going 38 or 39 miles per hour. fendant's position the accident was unavoidable. At trial, the child's negligence was never an issue, and through an expert witness, the defense established the requisite distances to stop based on the physical evidence at the scene. Instruction 20 clearly coincided with defendant's theory of the case. Furthermore, even if this instruction were improperly submitted to the jury, it did not constitute reversible error. A survey of the entire record reveals that the parties were given a fair trial and had the issues of fact and the applicable law presented to the jury in a clear and understandable manner. . . . 41-6-- - . . cross-exami- 16, 1971 ELLETT. Justice; (Dissenting) . . , ". . Tuesday, March THE DAILY RECORD TWO The first part of this instruction could only apply to the child; and while the last sentence says it can be considered only in connection with the conduct of the defendant and the plaintiff, it is confusing and meaningless to try to apply it to a nonexistent fact situation. The jury may not have understood the legal term "plaintiff. " Had the instruction said that the first sentence applied only to the conduct of Mr. Wagner, the jury would have been in a quandary as to what it did mean. After instructing the jury on all possible defenses to negligence, the court then proceeded to give that old standby instruction loved by defendants and criticized by most decisions of recent times, to wit: the unavoidable accident. For a discussion of this instruction, see my dissent in the case of Woodhouse v. Johnson, 20 Utah 2d 210, 216, 436 P. 2d 442, 446 (1968). ; The court further instructed that a person who is exercising due care has a right to assume that others will also perform their duties under the law. This instruction clearly told the jury that the infant child was violating his duty under the law and that the defendant was relieved from responsibility because of it. The child owed no duty to the defendant, and he violated no law. He was too young to be charged with any duty to the defendant or to anybody else. The court also told the jury that it was the duty of a person to drive a on the car highways while he was not under the influence of intoxicating liquor. This is not a true statement of the law. One does not have a duty to drive at all. What should have been said was that no person has a right to drive a car upon the highways of this state while he is under the influence of intoxicating liquor. He further told the jury that if Mr. Wagner did not do what a prudent man would have done in caring for and supervising his son, he was negligent and could not recover. The number of persons killed and maimed daily by drunk drivers on the highways of this nation has reached an appalling figure. It is my judgment that it would be a salutary rule if we withheld from a motorist the defense of contributory negligence when he is involved in a collision while driving under the influence of intoxicating liquor. The defense of contributory negligence was originally devised by the courts to punish a plaintiff for his own misconduct. See Lord Halsbury, L. C. , in Wakelin v. London & S. W. R. Cc. , 12 A. C. 41, 41 (1886). It is nothing more than a rule of court, and since it was instituted by the courts, it can be modified by them. In fact, the courts have everywhere held that contributory negligence was not a defense to wilful or wanton misconduct. See Prosser, The Law of Torts, Third Edition (Hornbook Series), Section 64, page 436. To me it seems that a drunk person who undertakes to drive an automobile upon the highways is guilty of extremely wanton misconduct and should be held responsible for any damages caused by his negligence. see pegs throe . |