324 F. 2d 266 - Vincent v. L H Young

This is a personal injury action arising out of a collision between an automobile driven by the plaintiff and a truck1 stalled on a Kansas highway. In a former trial, the court directed a verdict for the defendants. On appeal that judgment was reversed. Young v. Vincent, 10 Cir., 310 F.2d 709. On the second trial, the plaintiff's testimony as to the weather conditions and the manner in which he operated his automobile immediately prior to the collision, was in some respects substantially different from that given at the first trial. For the purpose of impeachment, the defendants, on cross-examination, questioned the plaintiff as to his former conflicting testimony, which was read to him from a transcript. Some of the discrepancies were admitted by the plaintiff and an explanation offered. Later in the trial, the defendants offered in evidence a transcript of a portion of the former testimony, as admissions of the plaintiff, to prove the weather and road conditions existing at the time of the collision and plaintiff's operation of his automobile under those conditions, for the purpose of establishing contributory negligence. This offer was rejected.2 The only question presented by this appeal is whether it was prejudicial error to exclude the offer.

The material facts in the case are that the plaintiff, Young, lived in Morland, Kansas, which is located 13 miles west of Hill City, Kansas. He left Morland by automobile early in the morning on March 9, 1960, and had driven to Hill City, then south approximately 14 miles to a point where he ran into the rear end of the truck. There was variable fog throughout the trip. He testified that it was dark when he left Morland, and while driving to Hill City he encountered a moving fog which at times was extremely intense, particularly at the lower levels of the highway. As he traveled south from Hill City it was still foggy, but less intense than before. The highway passed through rolling country, rising over knolls and dipping into what was sometimes referred to as 'draws', where the highway was lower than usual. The truck was stalled near the bottom of one of these 'draws', a considerable distance from the beginning of the downward slope leading to it. The plaintiff testified that as he approached the scene of the collision, his visibility was from 1/16 to 1/4 mile, and this condition remained fairly uniform. He stated that shortly after he crossed a culvert at the lowest point in the highway, he was suddenly engulfed in heavy fog, and his visibility was almost nil. He used his brakes to slacken his speed until he ran over an object3 on the highway, at which time he sharply applied the brakes, and the crash occurred shortly thereafter. The effect of plaintiff's testimony was that his visibility was not significantly affected by the fog until after he crossed the culvert.

On cross-examination, plaintiff was confronted with his testimony given at the prior trial, which was in some respects directly contrary to his present testimony. At the first trial, he testified that the fog conditions south of Hill City were worse than they had been between Morland and Hill City, that in some of the lower places his visibility was limited to one rod (16 1/2 feet), and that as he started the decline prior to the collision he was engulfed in heavy fog which continued until he ran into the truck.4 There was evidence that the decline began about 1000 feet north of the culvert and that the culvert was approximately 600 feet north of the point whether the truck was stalled. The plaintiff explained that after the first trial he read the transcript of the proceedings, and after going over the area he concluded that he was mistaken as to the extent of the fog conditions immediately preceding the collision. A game warden who was traveling south from Hill City came upon the scene within a very short time after the collision.5 Others, including highway patrolmen, were at the scene of the accident within a short time. During this time the fog conditions in the area remained about as described by the plaintiff.

In rejecting the proffered evidence, the court applied the rule that prior statements of a witness who is not a party to an action are admissible only to impeach or discredit a witness, and are not admissible as substantive evidence of the facts to which the former statements relate. See Brooks v. United States, 10 Cir., 309 F.2d 580. This rule, however, has no such limitation as to parties to litigation. Prior statements of a party, including testimony in a former case, are generally admissible as primary evidence against the party making them. 31 C.J.S. Evidence 302, 311, 381.6 Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393; Friedman v. Sealy, Inc., 10 Cir., 274 F.2d 255; Rogers v. Edward L. Burton & Co., 10 Cir., 137 F.2d 284; Order of United Com. Travelers v. Greer, 10 Cir., 43 F.2d 499; Kinghorn v. Pennsylvania R. Co., 2 Cir., 47 F.2d 588. Even though this evidence was admissible to establish the facts to which it related, we are satisfied that the error did not affect substantial rights of the defendant which would warrant a reversal. Rule 61, Fed.R.Civ.Proc. On cross-examination all of the relevant evidence given at the former trial was meticulously referred to by counsel for the defendants and heard by the jury in question and answer form. In comparing his former testimony with that given by the plaintiff in the second trial, the jury, as the sole judge of plaintiff's credibility, was free to believe or to disbelieve that which was in conflict with the former testimony. There was no substantial conflict in the evidence at the second trial as to the fog conditions at the time and immediately after the collision. There was no evidence except the plaintiff's testimony as to the condition of the fog and the road as he approached the point of collision, although there was other evidence of these conditions shortly thereafter. If the jury had disbelieved plaintiff's testimony, as it had a right to do, and found that the conditions were different than he testified they were, it is unlikely that it would have returned a verdict favorable to him. A litigant who seeks to have a judgment set aside because of an erroneous ruling has the burden of showing prejudice. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645; Creekmore v. Crossno, 10 Cir., 259 F.2d 697.

Affirmed.