*1 ought applied appeal superior court to have should not have been The dismissed. ap The appeal S3 this case. reinstatement of Criminal Rule will correct July appeal injustice, on such pellant gave accomplish notice of oral will the de nearly objective until four sirable having appeals 1965. It was not decided later, on November on months the merits.6 can prejudice see no superior brought to the to the attention state will state result such action, appellant had first time that at court for the for one time the state indicated grounds appeal her its satisfaction in having failed to state appeal de Court Criminal with District cided on the accordance merits when asked for October, meantime, 2(a). obtained an requiring appellant, Rule In order appeal, state, had moved to to appeal state dismiss file briefs. grounds not for failure to state judgment The is reversed case and the appeal, but for the because she had not filed superior remanded to the court for appeal Alternatively, brief. the state proceedings further consistent with the superior a time for asked the court to set expressed opinion. views in this filing court denied the of briefs. The filing motion and ordered the to dismiss specified In accordance
of briefs on dates. order, appellant
with that filed her brief 18, 1965, which was four
on November
days prior the time the state moved the ground on a dismissal grounds appeal at had not stated her BERTRAM, Appellant, Michael R. gave apрeal. the time she oral notice of grounds brief In her HARRIS, Appellee. Rex Homer appeal were stated.5 No. 677. why does not record disclose Supreme Court Alaska. promptly did move state dismiss Feb. 1967. appeal it was aware the time oral when appeal given notice of appeal. the grounds of her failed state
Instead, requir- the state obtained an order
ing appellant to file a and then brief sat expend allowed in preparing
time and effort a brief before
moving for a dismissal account of
pellant’s comply with District failure 2(a). Rule
Court Criminal
In believe that circumstances we these requirements strict adherence 2(a)
District Criminal Rule resulted Court injustice appellant, and
in an that her n will injustice. them herence violations of the fourth fifth amend- work foregoing applicable constitution, rule is made ments the federal fatally complaint Gt.Crim.B.. defective the district court District prac- provides 1 which that “Wherever so as to make the of conviction ticable Rules Procedure void. Criminal apply shall criminal actions within the Franke, 60, 62 Edwards v. 364 P.2d See jurisdiction of district courts.” appellant argued her brief that her illegal, arrest there had been
the intersection where the collision oc- curred, that he flashing observed a blinking yellow light intersection, car entered the intersec- Burr, Boney, Boney & George F. car “shooting came into the Pease, appellant. Anchorage, for intersection” from intersecting street Hayes Single- George K. N. and James right, and that the cars collided. ton, Hayes, Delaney, Wiles, Moore & Brooks stated car was about Anchorage, appellee. a half a length away car’s when he first it, saw and that up “came too fast NESBETT, J., Before C. and DIMOND suddenly and so that it was all over before WITZ, *4 and RABINO JJ. ” * * * it started. OPINION deposition In a appellee testified that he was traveling on Ninth Street at about 15 DIMOND, Justice. hour, to 20 miles that visibility Appellant’s appellee’s and cars collided good, that stopped he got when he to the city An- in a street intersection in the of intersection of Ninth and Gambell Streets chorage. Appellant brought this action for where there was flashing a light red fac- personal injuries by the accident. caused ing him, that he looked right jury’s appellee. in favor of verdict was left and did not anybody see and so start- speci- Appellant aрpealed, alleging has ed intersection, across the that at that part fications error on appellant’s moment car, car hit his and that group court. the as- For convenience we he hadn’t seen car until categories: three main serted errors into collision. The place accident took at about (1) relating those motions 2:30 Appellee a. m. stated that he had trial, (2) relating and for a new those supper eaten no the evening before, that he giving give certain in- or failure to had drunk from seven to ten 1-ounce drinks jury, (3) structions those relat- whiskey from the time he went to work ing evi- to the trial court’s exclusion of at 8:00 a. m. the morning before until 2:00 dence. a. m. of the following day, day accident, and that Judgment New Trial. midnight 1. Motions between 2:00 a. m. he did not recall having any Prior to the trial moved for drinks but that might he have. summary judgment. was de- The motion Appellant nied. claims error. this was Based on the foregoing testimony found depositions memory appellee, suffered a Brooks and loss appellant contends that prima a result of recol- the accident and had no made a facie case Brooks, showing: (1) passen- appellee lection of the a collision. 13, violated Title 85, ger appellant’s car, by deposi- Section testified Alaska Ad Code,1 traveling ministrative tion that car was and Section 19-38 of Anchorage City toward on Gambell Street Code of Ordinances they approached about 35 miles an hour as failed to observe a Anchorage, in that he (1963), 1. 13 now limit § Alaska at an or at a Adm.Code walk intersection (Nov.1966), marked, or, none, 13 Alaska provided 104.24 if then be- § Adm.Code line when pertinent part: entering intersection, and the fore right (a) subject flashing proceed Whenever an illuminated shall be yellow making stop signal applicable red or is traffic used rules after sign signal require stop sign. it shall obedience at a by vehicular traffic as follows: Mashing (stop signal) Ordinances red Section 19-38 the Code of —When Anchorage rapid City identical with red lens is illuminated inter- 85, flashes, Alaska Administra- mittent drivers of vehicles shall Title Section entering quoted stop Code, supra. cross before nearest tive note device, flashing red regulations, traffic сontrol dinances and that under our light; appellee Title (2) Rogers violated decision in Dubiel7 the burden upon appellee Section Alaska Administrative was justify such viola Code,3 tions, yield right burden, that he failed to he failed to sustain that way intersection; stop ap- (3) at a there prima was thus established a pellee negligence violated 28.35.0304 and Section facie case AS on driving Anchorage rebut, 19-23 which Code5 failed to and there fore, intoxicating while under the that summary judgment ought influence of to have liquor; granted (4) guilty been issue of negligence. his vehicle in reckless and careless manner in violation of AS 28.35.- Appellant’s argument and his re 040(a).6 Appellant argues then Rogers liance on v. Dubiel based on laws, foregoing traffic ordinances and assumption that it was clear as a matter of regulations promulgated pro fact that by appel- the accident was caused highways, ap tection of travelers on pellant persons one lee’s violation of the law therefore class protected, injuries that his genuine were caused were no re issues of fact *5 by appellee’s laws, of maining violations such or for trial.8 That is not There so. (a) person 3. 13 Alaska Adm.Code now (1963), § No who an is habitual subject drugs tie matter of Adm. 13 Alaska user of narcotic or who under is (Nov. 1966), provided intoxicating liquor § Code 104.53 the influence of or pertinent part any drug as follows: or the combined influence of (b) Except proceed intoxicating liquor any drug, when directed to and shall by police any city. or a officer traffic control drive vehicle within the signal, every ap- (b) person of driver a vehicle No who is an habitual proaching stop drugs a intersection indicated of user narcotic or who is under by stop sign stop a intoxicating liquor shall as influence the any drug of or by 123(d) having section and after or the combined influence of stopped yield right way intoxicating liquor any drug, shall of shall any physical any which vehicle has entered inter- actual control of highway city. section another or which vehicle within the closely approaching high- is way so on said 28.35.040(a) provides part 6. AS fol- as as constitute an immediate lows : hazard, having yield- but said driver so person аutomobile, A motorcycle who drives an may proceed ed and the drivers all of upon or other motor vehicle approaching other vehicles the intersec- public highway a or street state yield right way tion shall heedlessly carelessly, or in wilful or proceeding. vehicle so disregard rights wanton or safe- provides: 4. AS 28.35.030 ty others, or without due caution person who, A under while the influence circumspection, speed or at or a intoxicating liquor drugs, or narcotic endanger in a manner so as to or be operates automobile, or drives likely endanger person property a or motorcycle upon or other motor vehicle guilty upon driving, is of reckless public highway a upon street or in the stаte punishable by conviction a fine punishable by conviction is fine a by imprison- $1,000, than more or $1,000, impris- by of not more than or period ment for a of not more than year, onment for not more than one year, byor one both. by Upon both. conviction for sec- a 7. 373 P.2d subsequent ond or in violation offense section, license, of this the offender’s 56(e) provides entry 8. Civ.R. right license, op- and his to obtain a summary judgment pleadings, “if suspend- erate a motor vehicle shall be depositions file, and admissions to- period years, ed a of three this gether affidavits, with the show that suspension any is in addition to other genuine any issue as to ma- punishment fixed the court. any party terial fact and that is entitled 5. Section 19-93 of the Code of Ordinances aas matter of law.” City Anchorage (1963) provided pertinent part as follows: 9X4 intersection, that he entered question of when as issue fact was an car, appellee’s hit and not vice pellant’s car at the red appellee stopped his car
whether
versa,
appellant
apply
did not
that
entering
intersec-
light before
flashing
car
appellee
when he saw
enter
brakes
tion,
testified
because Brooks
also testified
intersection. Brooks
“shooting”
the intersection
came
into
shortly
appellant
the inter-
stop
before
entered
appellee
that he had made
testified
passed appellant’s
going
car
intersec-
section a car
proceeded across the
and had then
and 60 miles an hour and
between SO
was
manner. There
in a normal
going
faster
would
if “we
been
appellee
had
issue
fact as
whether
A
finder
in his trunk.”
fact
influence
have been
guilty
under the
while
appellant
could infer from
Appellant contends
intoxicating liquor.
traveling
speed
speed
at a
excess
drinks
of the number of
because
traveling, that
had,
that Brooks testified he was
admittedly had
it follows
is 35 miles an hour.
intoxi-
he was under
the influence of
hand, appellee
cating liquor. On the other
ques
testimony raised factual
Such
“high” nor
testified that he
not at all
tions
whether
had acted
as to
at all
that he
affected
the drinks
reasonably prudent person
would
fact
There
issue of
consumed.
was also an
acted
for his own
under
circumstances
yield
whether
failed to
e.,
safety,
appellant was
i.
.whether
way.
pleaded,
right
Appellee
as an
guilty
contributory negligence.10 There
defense, contributory negli-
affirmative
genuine
issues to be deter
factual
gence
appellant. Even as-
mined
at the time
moved for
entry
suming, arguendo,
in-
summary judgment,
court
and therefore the
seeing
to the intersection without
*6
denying
was correct in
the motion for sum
approaching amounted to a
of
violation
mary judgment.11
law,
regulation relating
some
ordinance or
driving
vehicle,
es-
of a
motor
Appellant’s
Rogers
case
reliance on the
of
negligence
appellee’s part,
tablished
the
on
misplaced.
v. Dubiel12
That casе dealt
is
contributory negligence
of
would
person standing
a
on
with
situation
a
where
recovery.9
bar his
Brooks testified that
portion
highway
a
in-
non-travelled
of a
was
speed
driving
was
a
5
at
of miles
jured
when he was struck
the defendant’s
speed
posted
hour in excess
the
limit
car which slid out of a traffic lane.
(Second),
483,
statutes,
9.Restatement
Torts
com-
§
in intentional
the
be
provides:
(1965)
disregard
high degree
ment b
risk
of the
negligence
plaintiff,
amount,
con-
Where the defendant’s
so
harm to the
statute,
law,
the
of a
sists of
ordinance,
violation
conduct un-
common
to reckless
regula-
or an administrative
der
rules
in
503.
§§
the
stated
negligence
tion,
contributory
the
for
is
plaintiff’s
action
In that
the
case
upon
violation,
recovery.
negligence
based
such a
the con-
will not
his
bar
tributory negligence
plaintiff or-
Contributory
negligence
is conduct on
dinarily
recovery,
bars
in
his
the
plaintiff
the
which falls below
negligence
de-
case of
other
the
the standard
which he should conform
where,
in
a
fendant. Thus
violation of
protection,
a
for
own
and which is
statutory
provi-
number of different
sions,
legally contributing
co-operating
cause
the defendant
his auto-
negligence
with
the
the defendant
speed,
plain-
mobile at an excessive
the
bringing
plaintiff’s
about
the
harm. Re-
contributory negligence
failing
tiff’s
(Second),
(1965).
§
statement
Torts
exercise,
protection,
for
care
his own
Valley
Ass’n,
Van Reenan v. Golden
Elec.
a
to avoid
collision will
recov-
bar his
(Alaska 1963).
379 P.2d
ery.
Thе fact
the defendant
violating
statute,
Pollet,
aware
he is
Wilson v.
416 P.2d
383-
so,
(Alaska 1966);
Haner,
and intends to do
does
make his
Ransom v.
(Alaska 1961).
conduct
intentional
harm
362 P.2d
289-290
plaintiff,
within the
stated
rules
may, however, apart
§§ 8A and 481.
It
12.
Plaintiff had established facie contributorily аt ques- fault. These were case when showed that he was stand- for jury tions to decide.14 ing on the shoulder street in legal be right location where he had a There also was in deny no error injured by departure de- ing motion ground for a new trial on the lane fendant’s vehicle from the of traffic contrary verdict was to the clear Thereafter use. weight of the repeat evidence. We here burden on defendant to convince what we said Ahlstrom Cummings:15 negli- trier facts that he was not The granting matter of refusing gent. [Footnote omitted]13 new trial rests in the sound discretion inapposite. Rogers case is In that judge. We shall not interfere neg- contributory case there was no issue of except exercise of his discretion ligence. Evеn Here such exists. an issue exceptional the most circumstances argument assuming the sake prevent a miscarriage justice. pellant by deposition testi- established require circumstances which would our mony by fail- violated the law intervention do not exist here. From a ing way appellant, yield right say review of record cannot summary would support evidence to the verdict was com- appropriate would still because there pletely lacking slight or was so and un- neg- contributory be the issue of convincing plainly as to make the verdict ligence decided to be trier of unjust. unreasonable and On facts. trary, we find that which the issues evidence, appellant At the close jury upon were called turned decide *7 ques- moved for a directed verdict on the upon dispute, in facts which were appellee’s negligence tions of clearly evidentiary that there was basis negligence. contributory The motion was jury’s omit- decision. [Footnotes jury’s Following the denied. return ted] verdict, judg- appellant made for a motion or, in the notwithstanding ment the verdict 2. Exclusion Evidence. alternative, This motion for a new trial. trial court Appellant contends that was also denied. maintains refusing appellant’s wit- in allow erred to erred. denying in court these motions the ness, testify except police Jones, officer as a rebuttal witness. denying There was no error the close of judgment. motions At pro- pretrial conference An order for оn presented been evidence trial there had part as vided in follows: ap appellee’s negligence and the issues of attorneys are in the above action contributory negligence which was pellant’s following in- comply with the the evidence substantially same as (Alas- Co., P.2d ka Brick 13. Id. at 298. 1964). ka McHugh, 416 P.2d Bank v. National McCoy 1966); (Alaska Alas- 15. 388 pre-trial prejudicial with reference to the claims that such error was structions be- trial conference meet and confer rected : tice [*] Prior this case: At [*] least ten case, [*] pre-trial conference no- counsel days prior [*] are [*] hereby [*] with pre- di- the influence of time of the accident. isco,16 cause appellant’s case in that it In Fairbanks appellee Jones’ pretrial had been testimony Publishing intoxicating order provided: would was essential Co. liquor while under have v. Franc shown at the party may Either call opposing accomplish the fol- witnesses listed counsel to by the other. listed will be lowing : Witnesses not permitted testify by court where n n n n # ‡ good surprise, impeachment, cause of Exchange showing c. names lists privilege impossibility * * be shown for *. and addresses of all witnesses withholding delay designation in the provided The order then that failure to com- thereof. ply requirement, foregoing question for decision in that case others, “may well as in the exclusion result judge per- whether the * trial should * * witnesses the trial.” appellee mitted counsel three to use Subsequent pretrial for a order witnesses at the trial were not named who ference, appellant pre- served and filеd a pretrial in the holding order. trial memorandum in which he listed wit- requirements in abandoning court erred nesses he Officer intended call. Jones’ order, pretrial we said: this, name was Following not included. procedure pretrial Pre-trial is intended assist order It was issued the court. issues, judge by simplifying trial made no mention of witnesses. necessary making amendments to and two When called Jones pleadings, obtaining admissions, limiting chief, during others as witnesses case expert the number of and con- witnesses objected ground that such sidering making determination proposed witnesses not named any other matter will fair aid pellant’s pretrial court memorandum. The orderly disposition of the action. granted a brief continuance trial specifically The matters mentioned in the opportunity to allow take the rule are exclusive. [Footnote depositions their witnesses order omitted] might he determine whether would need depositions a continuance of the if the requirement parties trial A all disclose indicated that need for further all names and witnesses addresses discovery. intended to works to the advan- called *8 tage completing both sides in discov- Following taking deposi- the of Jones’ ery proceedings, eliminating surprise and tion, judge the trial he consider- stated that shortening practice the trial. com- The ed it inexcusable that name was Jones’ monly the followed in Federal courts witness, furnished aas and that under the encouraged be in the this courts permit аppel- circumstances would not state. [Footnote omitted] chief, lant call his case in but Jones only Appellant in rebuttal. this permitted claims that Here either the order side ruling upon good was error because under Rule Civil to call witnesses not listed a order, entered, 16(e) pretrial impeachment, showing surprise, the when cause subsequent impossibility withholding privilege trols the action course of the for pretrial delay designating and the order in did not in- this case the witnesses require listing the of witnesses. tended be called. Counsel Fran- for 1964). (Alaska he woud he pretrial he knew counsel.18 admitted that The fact that the cisco order in the will subsequent not named calling several witnesses control the course of the periоds court, time action order for considerable does not mean that the trial, prior pretrial the effort procedure commencement make effec- tive, timely their to disclose authority "butmade no effort does not the to order prior entry names to the court and counsel pretrial order any made the parties exchange Nor effort News-Miner. the names of wit- calling the justify witnesses based to be nesses called at and that for It exceptions in the comply the contained order. requirement failure with this judge abandon the was error for trial that certain imposed. sanctions be requirements pre-trial order the provision The in the for a order under these circumstances.17 pretrial cоnference the to com failure ply requirement exchanging with the as to controlling That decision is here. “may lists of witnesses result in the exclu Although pretrial order in this case said ** * sion of witnesses from the trial” witnesses, nothing about the order for the reserves to the trial judge a discretion to pretrial abundantly conference it made either exclude depending witnesses or not exchange clear that counsel should lists upon the circumstances case. showing the names and of all addresses or not we will Whether interfere such with witnesses, noncompliance and that for discretion as in other cases where dis provision, having such counsel risked wit involved, depends cretion is on whether the testify nesses not named excluded from abused, discretion was which would be the ing trial. The fact that a re such only case if were left with the definite quirement pre made in an order for a and firm conviction on the record conference, pretrial trial rather in the than judge deciding made mistake as case, order sig as Francisco has he did to exclude or not to exclude wit nificance. 16(e) It is true that Rule Civil ness not listed in accordance with the order provides pretrial order when en for a pretrial conference.19 subsequent tered “shall control the course of the action.” But means find no abuse of discretion here. pretrial only order controlling shall be as judge basis finding inex- to matters mentioned order which cusable that name was not furnished Jones’ are, according to Civil Rule 16(e), rec by appellant. Nearly a witness one itation of the action taken at the con trial, year during before initial dis- ference, plead amendments allowed covery proceedings case, in this ings, agreements by parties made deposition had served notice that considered, matters and a limita subpoena was to be A taken. Jones issues for trial to those dis was issued but returned unserved. Jones posed agreements admissions or of The why record does not show Jones 17. Id. at 799. in the order. The order when en- subsequent tered shall control 16(e) provides: 18. Civ.R. course of the action unless modified judge (to shall make order judge prevent injus- manifest by counsel) drawn and submitted whiсh pre-trial tice. The order shall cover shall recite the action taken at such of the items in the form of or- *9 conference, the amendments allowed Appendix der in contained Forms the pleadings, agreements and the the made may appropriate, to these be rules parties any the of the matters subject to and such additions modifica- considered, and which the is- limits pre-trial judge may tions as the deem disposed sues by trial to those not advisable. agreements or admissions of counsel. attorneys signa- Hedberg, 647, shall affix their 19. See Sannita v. 404 P.2d respect tures to the order with to the stipulations agreements forth sot
g91 balancing probative job the value of the- dep- date and his subpoenaed a lаter at
not dangers against its of undue- police evidence deposition of taken. In osition jury prejudice, from the- nearly year distraction Moerlins, one taken officer issues, instance, no- of time.20 find trial, waste prior to the at The existence of' times. abuse of discretion here. several was mentioned officer Jones that in the bottle and the fact it was found possibility of Appellant knew of the Jones condition, appellee’s by appellee physical car were admitted testifying as to deposition jury was informed of this. There in because officer Moerlins by letting- purpose the hos- to serve was no useful stated that drove Jones jury jury take the accident. the bottle to the room pital the scene of during their deliberations. record, rea- light see no In the of this justify son which could Jury 3. Instructions. delay he designating in as a witness Jones Appellant did intended to call at the trial. trial' Appellant that contends claim, sup- the record nor indeed would jury giving in Instruction court erred made, port if that should claim 27, No. to the effect insurance was- compliance be excused from Appellant’s not an in case.21 issue pretrial because of order for conference argument is the effect of the instruc surprise impossibility or some other or indirectly jury that tion was to inform the justifying reason the failure to list Jones uninsured, appellee was this was. prior as a trial. witness to the general in contravention of the rule assigns the trial also as error improper prejudicial to in makes it court’s refusal to admit into evidence jury directly form inference that whiskey found in car. bottle party or uninsured. insured refusing to admit the bottle into evi- complaint.. Appellant has cause for dence, judge felt the stated brought He first the- was the one who pellant - position was in same without thought During of insurance into the case. it, the bottle as with there was general questioning jury panel’ nothing anything to connect the bottle with (cid:127) any asked whether member happened that had at the accident. The panel any- any owned stock or interest judge also said: corporation. member When one answered [Wjhen officer Moerlins was on “yes”, appellant inquired whether or not it stand, bottle, up he held showed it to company. Appellant was an insurance sub- says, He ‘The them. same amount of sequently inquired any member of the- if whiskey is in it now that it was in when panel any any owned stock or interest picked up.’ I I it can’t see how the company, anyone insurance whether having world physically bottle employed by ever been an insurance com- possession jury going you to do pany, and whether member of the- any more good than is not. panel employed had ever been as an ad- juster investigator for an insurance cor- ques The determination of the poration. tion as to the admission or exclusion of demonstrative By evidence is asking questions appellant may one within the these discretion of judge conveyed who has jury impression: McCormick, arriving your may Evidence § at 385- verdict. You (1954). presume § at 394 tlie Defendant carries such insurance or that he should' car- provided: ry Instruction No. 27 it. Your verdict must based sole- be hereby ly You are instructed on the evidence in the case and the jury may given instructions, case neither court nor law as in these any regard concerned (cid:127)with insurance. You without whatsoever to the- subject should not even discuss the existence or non-existence insurance..
919 company "that an insurance would be re a failure to prudence exercise reasonable (cid:127)quired pay any judgment safety. recovered for his own The issue of contribu- -against appellee.22 tоry effect negligence of Instruc properly was submitted to No, impres 27 was to erase such jury. an jurors’ sion from the minds'which was Instruction also No. 14 with dealt keeping appellant’s contention degrees negligence.24 of disapproved We improper jury is to inform the either of such an instruction in v. Mitchell directly indirectly in party that a is Knight,25 saying: Thus, ap judge sured. did that which portion That relating of the instruction done, pellant ought contends to have been degrees negligence slight neg- consequently appellant has .and no reason ligence appellant on the might of the complain. tendency jury have the to mislead the Appellant that the court erred contends believing subject into was subject giving Instruction No. 14 on the higher standard care than contributory negligence. (cid:127)of Saslow pellees, proof and thus that less would Rexford,23 spoke subject to establish (cid:127)contributory negligence as follows: tributory negligence appellees’ neg- than Contributory de- negligence has been ligence. disapprove For this reason we in- consisting 'conduct fined which of the instruction. per- risk of harm to the volves undue However, as in the Mitchell find case we It is failure son who sustains it.’ one’s prejudice appellant. no Instruction No. prudence his to exercise reasonable adequately subject 14 dealt with the of con safety danger to perceives own when he tributory negligence according to the con by negligence. himself created another’s ordinary prudent ventional standard omitted] [Footnote person, contributory evidence .Appellant contends evidence negligence jury could such (cid:127)contributory negligence, any, if did not contributory guilty have found n meet foregoing test. by negligence applying the normal standard ordinary prudence.26 of care demanded disagree. There was room that the erred opinion contends court -(cid:127)an honest wheth difference refusing appellant’s proposed give speed entering intersec er 7A reckless apply Instruction No. on wanton and his brakes tion and failure to conduct,27 ground there was he saw car when involved support jury find sufficient evidence risk of harm to and was undue negli- cоvery by contributory (1949). Annot., 22. is barred 4 A.L.R.2d 793 n (cid:127) gence. 1964). (Alaska 23. P.2d 25. paragraph last of Instruction No. 24. The provided: Ibid. degree negligence par- Appellant’s proposed Instruction No. 7A consequence; provided: ties alleged they you plaintiff say, were if find that Plaintiffs proxi- injured negligence negligence only by negligent, and that his defendant, imately the wanton or but also contributed the accident though injuries, resulting If of the defendant. even reckless conduct injuries slight plaintiff you plaintiffs’ negligence find that negligence or reckless conduct defendant was the wanton result of and the your still, defendant, you proportion, great if find then verdict against plaintiff plaintiffs negligence be for must proximately to the accident the defendant. contributed injuries, person’s resulting plaintiff wanton reck- A conduct is .and recover, voluntarily re- does an act know- because less if he >is not entitled *11 ing appellee operated had staying his car while on the road in his lane of traf- intoxicated, voluntary fic, and that difficulty vision, intoxication no difficulty in his no highly is a the walking car, circumstance relevant on as he walked to his and no difficulty issue of wanton misconduct.28 The court with his own reactions. give proposed declined to instruction There give was ho error in refusing to ground nothing it could find an instruction on wanton and reckless con- justify at all in the evidence that would holding disposes duct. This conclusion that further contention that the court erred in liquor. while under influence of failing give proposed his Instruction 7B Appellee contributory admitted that between 8:00 a. m. which negligence stated that day prior not a accident and 2:00 was defense available to a defend- day a. m. wantonly recklessly. accident he had ant who had acted or anywhere consumed from ten seven to Appellant’s point final is that the proof 1-ounce drinks of blended bourbon in failing give jury court erred to the whiskey, and that the most he taken appellant’s proposed Instruction No. which midnight between and 2:15 m. a. was two provided as follows: drinks. Officer Moerlins testified that when he saw at the scene of the The defendant is the owner and driver of liquor. accident breath smelled of a vehicle which entered an arterial street Appellee admitted that he had refused to highway, Street, or wit: Gambell take a balloon or blood alcohol test because place accident, failing the time and opinion in his those tests would show one yield right way the vehicle to be intoxicated even if he consumed plaintiffs riding, which the only However, appellee two drinks. said violation of Section 19-85 Anchor- willing he was to take test for in- Plaintiffs, age hav- Code Ordinances. toxication other than the balloon or blood ing that the accident resulted established tests. entering from the defendant’s an arterial highway yielding street or without There was no substantial evidence right way including to all vehicles wanton and wilful misconduct reason plaintiff approaching the vehicle vоluntary intoxication sufficient to re highway, on such street defendant or now quire jury. submission of that issue to the justification has the burden of proving The fact that a man consumed from seven said violation. to ten whiskey during ounces an 18-hour period shown evidence previ- There was no error. As we have necessarily ously indicated, question him cause intoxicated. of whether be pellee yield right way failed to Appellee testified that he was not intoxi question violation of law was by stating cated immediately preceding jury to determine. difficulty the accident handling he had no controlling automobile, or difficulty is affirmed.
ing, having voluntary, know, reason intend of facts actor does which would lead a reasonable man to harm which results to cause the or, only enough realize that the actor’s conduct not that he realizes it. It knows, creates should unreasonable of harm risk facts which he from the strong prob- another, to the interests but is a also realize that ability high result, degree probability may involves a harm even expects though hopes harm will result of an- interests even prove other. Wanton or reckless misconduct will harmless. his conduct wrong-doing differs from intentional very important particular. Mortensen, in a 207 Or. While See Falls (1956). an act to he wanton or must reckless *12 RABINOWITZ, (concurring). and further stated comply that failure to Justice requirement this could result in the majority’s opinion ex- with the I concur exclusion of witnesses at trial. On the cept pertaining Officer thе issue hand, explicitly other Civ.R. 16(e) provides testimony. Jones’ pretrial order, that the entered, when shall Publishing my opinion Co. In Fairbanks subsequent control the course of action. inapposite. There Francisco1 pretrial this case the order was silent on pretrial specific made reference to order question limitation witnesses. trial, who be called witnesses could pretrial while the case at order bar witnesses, If expert nonexpert, either Unlike contained no reference to witnesses. are to be trial, limited at then such a limita- indication in this Francisco there must, my opinion, be made a appellant’s record coun- attitude pretrial binding. order to be I am there- compliance court’s sel with the towards fore opinion that it was an abuse of gen- pretrial procedures in order and with precluded discretion to eral was akin to that of Francisco’s counsel. calling Officer nothing There is Jones. the record which contradicts counsel for In this case counsel had pellant’s assertion that he relied fact prior notice counsel same as did there was no possibility limitation of could witnesses Officer Jones pretrial embodied in give testimony pur- order. concerning Neverthe- less, I concur in ported Admittedly, result reached state intoxication. court because superior pretrial has court’s order for failed to show that he counsel, prior pre- precluded, ference under conference, ruling, court’s exchange trial disclosing offering lists Officer Jones’ witnesses, testimony the names and addresses of all in rebuttal.