*1 vide any nse the easement over the tene- servient ment be tenement (Lot P) appurtenant dominant C). (Lot
Harriet Bouslog Symonds & (Bouslog briefs) for respondents-appellants. F.
John Alexander Alexander & (Hughes, Smart David Zundel the brief) for petitioner-appellee.
LOUIS COLLINS v. CONWAY HIROSHI SHISHIDO.
No. 4294. 30, 1965.
June C. Tsukiyama, Cassidy, J., Wirtz, Lewis JJ. Mizuha, *2 CASSIDY, BY J.
OPINION OF THE COURT judgment by plaintiff appeal entered from a This is after an extended on a verdict returned for the defendant injuries property personal trial and of an action for damage a collision between an sustained belong- by plaintiff pickup truck driven and a automobile being operated ing truck was defendant, one of defendant’s course of defendant’s business employees, Kalua. Gerald April p.m. occurred 3:30 on
The collision about Kapi- at the of Atkinson Drive with T-intersection traveling Plaintiff Ewa olani Boulevard in Honolulu. was brought (west) Kapiolani and had his on Boulevard auto- (north) stop a in the mauka lane within few mobile to a (east) prolongation curb of feet of the of the Waikiki by defend- struck in the rear Atkinson when was Drive, testimony that he had been It ant’s truck. was approximately fifteen before his at a seconds for made a normal He said he automobile was struck. pickup police had in the truck which behind away police pulled truck and that when intersection standing person on the sidewalk with “No he noticed a sign he in his hands. Plaintiff said Left Turn” traffic automobile, in front to cross the person signaled, impact “the him because happened did not what but see fast.” occurred so the plaintiff. for called as
Kalua was witness from his doubt any beyond appears functioning properly. not truck were defendant’s brakes of skipping truck had been the brakes of Kalua said that pedal the brake him to necessary puinp that it the condition of He had discovered them operate. to make could he thought but in the afternoon earlier the brakes usual fast as safely by traveling the truck operate Kalua On cross-examination careful. extra by being Louis School from the St. he proceeding testified in- necessary make all stops, he able to and that area made last stretches. some downhill cluding *3 Kala- and of Boulevard Kapiolani at intersection feet from the point hundred is several kaua Avenue, that after he testimony pro- It his collision. from Avenue he shifted Kalakaua. ceeded from at the collision he was before just that low to second gear; from 20-25 miles hour; gear second traveling from lengths away plaintiff’s three car he was about when and that his down and then stopped; automobile it slowed because the condition into the automobile truck crashed truck in him from stopping prevented brakes his the truck he tried to brake Kalua testified as time. in front of the to the curb from a person jump he saw inferred from Kalua’s be may automobile. plaintiff’s the reasons for collision was that one of testimony It can suddenly. his car be had stopped that plaintiff did from own deduced car. In stopping before or while make a hand signal particularizing without testified, this connection automobile was Avith equipped or that his type to' size, as applied. the brakes Avere red Avhen tail Avhiehshowed lights only regulations in evidence respecting signaling were f a and of subparagraphs Section Paragraph 7, VIII, of the Honolulu Traffic Code, reading follows:
“7. and Signals starting, stopping turning.
a. The any driver of vehicle upon public highway turning before or such vehicle starting, stopping shall first see such movement cessation of movement can be made in then if safety; any pedestrian may be affected by such the driver movement, give shall a clear- ly audible signal by sounding a horn or other warning and whenever the operation any other device, vehicle be affected may by this shall movement, give driver a signal plainly visible to the driver such other vehicle intention mate such movement.
****** f. All signals herein required by hand and given arm be given shall from the left of the standard side and vehicle from the right right-hand side of a driven vehicle manner and following signals such shall indicate as follows: From a
(1) standard left-hand driven vehicle Left
(a) turn —Hand and arm extended hori-
zontally. (b) Right turn —Hand and extended arm up- beyond left side of. the
ward, vehicle.
(c) Stop or decrease arm speed —Hand
extended the left beyond side downward, . of the palm of hand to rear.” vehicle, Plaintiff’s first specification predicated error on the refusal to give Requested court’s Instruction No. as reading follows: 19,
“You are instructed a has a right motorist at follow another a dis- reasonable safe motorist
415 tance. back keep lie must Ms or govern speed However, a for the reasonably safe distance provide so of a car in front main- contingency suddenly stopping, immediately a lookout for car taining proper pre- him that he ceding and so can or otherwise avoid behind following collision. The driver of the car another under such that he should anti- circumstances cipate the of obstruction or trouble of some possibility should have his car under sort, proceed such control or at such a rate of speed that he can at once if the car in front stops.”
The first sentence of the instruction requested adds nothing was not given jury otherwise in the court’s charge, particularly by inclusion the charge Requested Instruction No. 18 which informed Plaintiff’s the jury an applicable ordinance “The required driver that, of a motor vehicle shall not follow another vehicle more .
closely than is reasonable and due prudent, having regard for the of such speed vehicle and the traffic and the upon condition of highway.” The remainder of the proffered instruction places duty driver to trailing operate his vehicle in such a manner that he “can once” or avoid otherwise a collision if car in front stops. The ability to stop instantly under any and all circumstances is not a necessary having an under automobile control. Carruthers v. 192 Iowa N.W. Campbell, 138; Coach Corp. Hopkins’ Consolidated v. Adm’r., Ky. 1. S.W.2d The instruction duty also imposes driver to trailing anticipate possible emergencies fastens him responsibility on to avoid a collision regardless the actions of the driver of the leading vehicle. thus makes comes close to making operator of a trailing vehicle insurer is a rear-end there whenever collision. We are of the in- opinion requested
416 requires unjustified degree
struction an excessive operator trailing care on the car. See a Kissinger’s Ky. Vinson v. 274 S.W.2d 628. Adm’r., 606, 119 support appellant In of the instruction cites a lead- ing case and Brehm relies on v. 206 Md. Lorenz, 500, quoting A.2d from it “. 475, as follows: . . is Thus, duty keep of the rear driver to safe distance between keep and to his machine in to vehicles, well so as hand, doing injury avoid to the machine ahead. . . . The driver ordinary of the rear car must col- exercise care to avoid liding goes quota- with the front car. ...” farAs as it correctly proposition applicable tion states basic of law although question pertinency there much here— reading, before us an omitted sentence “The driver of ordinary the front car must exercise care up adequate giving slow without the driver of rear car warning actually of his intention to do so.” The case ipsa loquitur application involved res doctrine. support appellant’s general does not contention as a that, operator trailing responsible proposition, the of a vehicle is resulting for a rear-end collision from his failure to antic- emergency stop by leading appears ipate vehicle. It Maryland quite contrary. hold court, affirming judgment for the defend- on directed verdict ant-trailing-driver (pp. 479- a rear-end states collision, 480) :
*“" * Dowdy, Mitchell as we said in v. Moreover, auto- 42 A.2d the fact that one 184 Md. 717, 634, 642, traveling proximity to does in close another mobile is negligence. appears If it not of itself constitute brought it to a sudden of an automobile the driver any giving emergency, warn- without because of some following ing at a reasonable distance, to a driver negli- presumption the rear driver was there is no gent after the neces- the chance to he had unless sity Weaver v. stopping apparent. Motor Transit Management Mich. 233 N.W. Co., *6 179. “In this case the front in which Brehna Mrs. car, n was riding, stopped unexpectedly very
was and sud- denly the when driver saw cat. The sudden stop in itself be could for the In ample cause collision. these of doctrine res circumstances, ipsa loquitur not applicable.” was
There was no error in the refusal of Re- Plaintiff’s No. quested Instruction 19. of Error No. error
Specification assigns refusal of the court to Plaintiff’s give Instruction Requested No. reading:
“The Court instructs that jury the Defendant of has the burden proving defensive if pleas, and, the evidence in this the Plaintiff case shows that in lawfully his automobile on a stopped public high- for a way waiting pedestrian carrying a street sign cross front of his and whilé automobile, thus struck from by beverage behind truck with de- by fective brakes owned Defendant and negligently by employee driven servant of while Defendant, that care and that exercising prudence is ordinarily prudent exercised men by similarly the De- situated, plea contributory fendant’s has not been negligence sustained.”
We are unable to see how this could instruction have done than confuse and otherwise mislead the jury. is “while exercising obvious that care clause,, exercised men prudence ordinarily prudent is sim- and that ilarly misplaced is reason thereof situated,” the instruction is made so as to be confusing almost mean- not ingless. only its defect. However, pleas” term “defensive plural The use improper the instruction was clause of opening the de- plea” There one “defensive only misleading. the af- and that was had burden of proving, fendant in his set out contributory negligence plea firmative in the opening assertion startling answer. Appellant’s clear burden of had the brief “Defendant Shishido that, of no negligence both of his defense proving pleas the part contributory negligence of Kalua and all of aby preponderance Collins Plaintiff-Appellant obviously does but explains the evidence adduced,” under the term form of the use of justify plural consideration. out and, think, we singles instruction
Further,
*7
to the effect
unduly emphasizes plaintiff’s
of his car
in front
pass
he had
to let someone
in Powell v.
stated
in the street. As is
a traffic
place
sign
2d
Specification of Error No. is overruled. The third error specification of reads:
“The trial court committed error reversible in not a mistrial sucu or in declaring sponte, cautioning or in not jury, disciplining Defendant-Appellee’s counsel for his unlawful when the misconduct, latter, closing during argument jury unlawfully, falsely unfairly and charged Plaintiff-Appellant ‘us a telling right bald-faced lie here in the Courtroom’ and that ‘Mr. him Corey to do un- helped further it’; commented lawfully jury non- speculative, evidentiary street, speed time measurements and other non-evidential extra-judicial matters which had been never admitted were inserted evidence, after the had defense and were not rested, contained in the record of and further con- case; misstated siderable evidence to the which error jury, resulted *8 substantial resulting prejudice to Plaintiff-Appellant’s case and as is reflected in the adverse ver- rights, jury ‘H’).” dict. (See: Appendix
Overlooking multifariousness this specification remains that with the exception still of the error as- in respect serted to defense argument counsel’s charging “a plaintiff with bald-faced lie” telling nothing men- else tioned or intended to be raised by is specification required particularity anything near
set forth with
3(b) (4)1
See State
Rule
to be reviewable.
court’s
this
how
The answering jury argument as follows: course of the Counsel) (Defense We’ve been “MR. EVENSEN inconsistency talking and contradictions but Mr. about right lie in the court- a bald faced here told us Collins helped Corey him it. Mr. do room. Counsel) object, (Plaintiff’s : Your I
“MR. COREY proof beyond object has Mr. Evensen I unless Honor. argument, unfair This is move a reasonable doubt. and remarks. statement strike counsel’s — Your Honor “MR. EVENSEN: argument hear Let’s what the “THE COURT: reference I I what he has to, think know about. yellow days preparation sheet on missed complaint. copied from the — please If it the Court “MR. EVENSEN: copied by you. “THE COURT:. Which right. I would like to That is have “MR. COREY: object prove I lie. to that faced him bald stated highly being improper. as part be “THE That will stricken. COURT:
n your supports copying, it.” to requires opening provision brief to contain the rule This' upon, things: specification among of errors relied “A shall other separately particulars numbered; out of each error shall set be urged.” intended to be *9 further objec- Defendant’s counsel without thereupon, tion and counsel of interposition by plaintiff’s without for further admonition request motion for a mistrial or he upon to relate the facts proceeded jury, rested the con- his accusation. Under the circumstances tended error well be deemed to have been waived might by plaintiff’s acquiescence proceeding so trial, but in of the feature of the view stress on this case placed denial of alleged plain- connection with error tiff’s motion for a trial the record new we will scrutinize and consider the claimed misconduct of counsel on’ the merits.
While on the on Friday stand (August 11, 1961), asked on direct accord- examination to state, to his much ing best recollection and how time memory, from lost 1957. he had a memo- May work He said randum covering matter and would like to refer to it. His counsel I think I stated, know where “Perhaps, is,” indulgence asked court’s for time to find the memorandum. near the noon the trial being hour, recessed over the further examination weekend without plaintiff.
On the counsel following Monday, reverted, in the him the amount morning questioning session, of time he had lost from work in 1957 on account of the during May Sep- the months accident, specifically, Plaintiff he could not remember the precise tember. said days number of he had lost in the months referred to but I said “At this moment have a recap number that, He days during explained lost months stated.” that the made from recap original contemporaneously entered notes which had been Defense diary misplaced. counsel to the use of the objected recap grounds that a foundation had not been laid. The inter- proper then rogation proceeded as follows:
“Q Mr. Mr. What is that (By Corey) recap, *10 Collins? during
“A the number of the recap days is of that I month lost.
“Q You it came from? know where I the “A This had facts récap kept Yes. to the case. pertaining
“Q in your complaint? And is this the one as same “A That’s correct. not I think the factor is important
“THE COURT: or not but complaint whether what is you time did make them? what “Q you Do you recap? At what time did make this remember? of 1957. year
“A I it during made sometime “Q Before or after accident?
“A It after the accident.
“Q when after the ac- exactly Do remember you that you recap? ’57 made year cident in exact date but to “A I could not give you I prepar- it at the time was recollection was my best returns.” information for tax ing my testimony by and from further the foregoing From it plain session is Monday morning in the to the court intending convey stating plaintiff was then in the memorandum that he had prepared and jury his questioning, plain- in 1957 and possession that, his making led client into aided or counsel tiff’s representation. the following afternoon Monday session
During of plaintiff: occurred on cross-examination are this “Q you using sheet recap Now, it not? is your handwriting, that’s in own morning, “A recap That sheet?
“Q Yes. “No. It be I may my be would wife’s, might in, be hard pressed say. my I would recognize own handwriting.
[*****] “Q Mr. you a document Now, pur- show Collins, porting to be Defendant’s which is Defend- Exhibit, ant’s Exhibit for identification A, recap [the sheet] and ask if you you recognize document?
“A I recognize Yes. it but this not my is hand- own writing.
“Q This is not your handwriting?
“A No.
“Q Do you recognize the handwriting?
“A Yes. This Mr. Corey’s handwriting.” *11 Further questioning out brought that memorandum had plaintiff to in testimony referred his on Friday had been misplaced the memorandum he had in his possession Monday on at his his prepared, request, counsel before appearing in court the morning on of the same day from the information in set out the complaint which plaintiff had furnished.
On this record it to us that the appears facts developed in the subsequent interrogation of himself show that he deliberately false gave when testimony he said the memorandum he had him with on Monday had been prepared by and also he himself, when said that it had been in prepared 1957. Further, testimony his the memorandum had been prepared request by his counsel on Monday taken in conjunction morning, the questions him asked on direct examination in refer- ence to readily permitted it, argument that plaintiff’s counsel had helped plaintiff in making the false repre- sentation.
Defense counsel’s attack on the credibility of plaintiff and his remark respecting plaintiff’s being fully counsel,
sustained by the evidence and supported by the record, in our were, well within the opinion, of scope legitimate argument. As is in stated 366- C.J.S., Trial, pp. § 369: “The object of summation to the jury is to give counsel an opportunity to comment on the evidence, discussed supra within reasonable and, limitations, § includes the to comment right give those who evidence. The comment range such is necessarily the discretion óf the trial judge. Where his remarks are sustained it improper facts counsel n make, argument statements on the reflecting character or conduct of the party or his opposite or the attorney, any or officers, of such employees, witnesses party, or their concerning or of testimony, a codefendant of client. Counsel counsel’s should not indulge personal criticism of the opposing attorney. where evi- However, dence sustains his he may statements reflect on the charac- or credibility of a or of ter, conduct, persons party, under control, of a or of he under other party, witnesses; may, where evidence sustains circumstances, his statements, reflect on the or of testimony the conduct of witnesses, reflect opposing may attorneys, his own witnesses.”
(cid:127)Specification No. 3 is overruled.
The last two of érror be considered specifications will in effect together. By No. is claimed Specification cannot be supported as matter verdict that, law, *12 No. 5 by Specification or warranted the avers evidence. that trial court committed error denying plaintiff’s the motion for trial. a new motion for verdict was made the by plain-
No directed not in sufficiency' any way tiff.. The of the evidence was motion for a tidal. Undér contested until he filed a new of plain- there be a might question these circumstances, and in to- a review at this this stage court, tiff’s right, Pooler v. Stewarts’ of the the evidence. See sufficiency of Jacobson v. Yoon, Haw. and cf., Pharmacies, Ltd., point 181. was procedural Haw. this However, raised or briefed by argued defendant and not been has by the deem it inadvisable parties. accordingly We for the pur- make a the will assume ruling on but point of the poses question that the argument this case to have been sufficiency may be considered evidence attack on by raised and effectively reserved review the verdict made motion for trial. We never- by the newa theless are of the must be sustained. view that the verdict
Plaintiff’s from the basic contention argument proceeds only as a a that, permitted matter of the evidence law, finding only of defendant and negligence on a finding contributorily negli- was not plaintiff gent. can the de- We assume or conclude as far as that, fendant only finding the evidence a warrants concerned, that Kalua his negligent negligence was proximate colliding. cause of the vehicles we However, cannot agree finding the evidence allows but one on If contributory issue of we could negligence. accept automobile was premise, argues, a standstill'for fifteen or more seconds before undoubtedly struck we could agree defendant’s truck, as a mhtter of would not support evidence that, law, permit finding negligence plaintiff’s part. in Fuld reasoning holding Maryland Casualty v. La. Ct. 178 So. relied on Company, plaintiff, App., then to exonerate But' the plaintiff. would be applicable require evidence did not version acceptance that his had for an appreciable automobile been have interval of time before it was struck. As we stated jury there from could earlier, infer that his' car to sudden plaintiff brought feet thirty truck was not more than when defendant’s *13 426
behind it. jury could have Further, found plaintiff had failed to a hand give signal of his intention to stop. these Considering and the fact circumstances stop was made or fifty some or more intersection, feet from a findings by the crosswalk, jury plaintiff contributorily negligent and that negligence a proximate cause of the accident were within the range of the evidence. We cannot say that reasonable men could not reach different conclusions in resolving the conflicts in the evidence and the inferences to be from drawn and in evidence whether or not determining his automobile in a operated prudent manner. The issue of contributory negligence was therefore one properly for decide. jury Young v. Price, Haw. P.2d 365. to this case Applicable are the generalizations set out in 8 Am. Jur. as 2d, Automobiles, pp. 329-330, § follows:
“The sudden of his vehicle stopping by motorist, in a collision resulting between his vehicle and the one behind constitutes particularly where negligence, such stopping unsignaled. duty give signal or of the intention or warning slow a motor vehicle is embodied in in most highway juris- statutes but it been the common- dictions, recognized has care in duty exercising ordinary operation law may of a motor vehicle also such a require signal. ordinary Under circumstances the determination whether care of such a ordinary required giving be left to the of fact. signal jury question would * * * * * “* * * the fact that vehicle stopping However, rear off the equipped lights operating brakes held to relieve necessarily has been the driver suddenly ahead of another negligence stopping the relevant statute though provided even motorist, an electrical signals by of the giving *14 device.” mechanical there alleged ground
In addition to the more than amounting any substantial evidence, we have rejected, support scintilla to verdict, trial out in motion for new set ground second in the verdict was “clearly, palpably, essence is so and the evidence to indicate strongly” against decidedly, “of and under the influence given passion, it was rendered undue influence, hurry, opportunism, fatigue, prejudice, defense counsel’s or vindictiveness” and of bias, partiality, jury upon closing and “falsely alleging arguing that Plaintiff and counsel were both argument Plaintiff’s ” liars.’ ‘bald-faced to a of the second approach ground review in Pooler motion is as stated v. Stewarts’ Pharmacies, Ltd., at 623: direct our inquiry Haw. we supra, 618, “So, question as to whether the court abused its discretion the motion. In start denying such we pursuing inquiry, with the statement of Justice Brandéis in Fair- following mount v. Cub Fork Coal Works 287 U.S. Co., Glass at which we page agree: ‘Appellate courts should juries be slow to of their and impute disregard duties, to trial courts a want of diligence perspicacity ap ” conduct.’ Also as is in Rain praising jury’s stated bow Is. Prod. v. 44 Haw. 351 P.2d Leong Agency, 134, 137, must have due trial regard we court’s 1089, 1091, “feel for the case.”
We are satisfied that there was no of diligence want or lack of part of the trial court perspicacity the motion. Prom considering deciding analysis our of the record and the we are satisfied that there evidence, could be no for our justification holding trial court abused its discretion in the motion for a denying new trial.
Specifications No. 4 and No. 5 are overruled.
The judgment is affirmed. E. Ralph & Corey (Clark Corey counsel) for plain tiff-appellant.
Albert W. Evensen for defendant-appellee. LEWIS,
CONCURRING OPINION OF J. I concur in the portion of the court’s opinion which holds that the argument to the jury on the defend- counsel justified ant’s by the record. This concurring opinion concerns remaining specifications of error.
Defendant’s testified employee, Kalua, that, he told the “I scene, police officer: hit the other car *15 because of my brakes.” when directly ques- However, tioned on his prior experience in the he stopping truck, testified that he never before had had occasion to stop All suddenly. that elicited was was that a normal stop the of 20 to speed, 25 miles an hour with the truck loaded as it that was would 30 feet day, require to to truck the with good brakes. testified that he Kalua 15 to 20 feet behind car plaintiff’s when he first tried to the truck. he had noticed the car Previously “moving- slow” 30 to 35 feet ahead and had eased on the up gas; he the brakes the applied being when “saw closed.” gap
The burden was on the to show that the de- plaintiff brakes, fective were a cause of the accident. proximate Whether car with brakes could have been adequate of time was essential point. Irrespective contributory the evidence not such as to negligence, finding warrant a of causation as a of proximate matter law.
It may
knowingly
be that a defendant who
operates
the
held
a car on
with defective brakes should be
highway
for an accident
he would have had the
responsible
which
last clear chance
avoiding
adequate
of
with
brakes,
in that situation should not be heard to invoke contribu-
of
tory negligence
plaintiff. This
proposition
is
the
by
advanced
some of
cases. See
Compara-
Prosser,
tive
51 Mich. L.Rev.
But
note 41.
Negligence,
473,
would
burden
still
leave
of
of
proof
requisite
the facts
to application of the last clear chance
doctrine.
the first sentence of the foregoing pre- paragraph sented in this case. my While this I deem it is view, important note the record state on the point. As refusal of plaintiff’s Requested Instructions Nos. 19 not error in agree this was view form which were they presented. MIZUHA,
DISSENTING OPINION OF J. I am of the opinion the defendant has not sus- contributory tained the burden of proving negligence The only substantial evidence. evidence from jury could find that the plaintiff contribuíorily negli- gent by suddenly following testimony stopping of defendant’s truck: operator Nalua,
“Q you Do remember Mr. Collins What asking you, happend?’ me.
“A he asked Yes, “Q you And recall him? telling what do I for stop “A him he came to a too suddenly told in time. stop me to
“Q And what else? he I thought
“A That the reason stopped for, tbe out had tbe traffic cone laying because fella traffic up sign. finished just putting sign, “Q vicinity notice in the you any sign Did happened? accident after accident “A Yes.
“Q you anything? kind of a did if sign What notice, “A turn.” No left Kalua testimony from failed plaintiff
There no were lights or that signal plaintiff’s stop to make hand warning. and that was without stop not working, and that came to a normal Plaintiff testified I am unable time. lights working his were from which find anything had failed or deduced that could have found jury In intention stop.1 fact, a hand his signal to give you car counsel]: What did do after the [Plaintiff’s COBBY “MR. you stopped? ahead I to a also. another [Plaintiff]: came “WITNESS “Q you [By Corey]: you square, put And could would Mr. purple? square put another We have a red one here. “THE COUBT: “Q Very you. you stop? square did We’ll use the red Where well. ahead of me. “A Just behind “Q car you you say stopped? behind that car How far would “A Two or three feet. “Q May a red has marked with show that the the record witness adjacent prolongation immediately pencil Kokohead of Atkinson stopped. Drive where he The record will so show. “THE COUBT: long Now, car, “Q car ahead of strike that. How did the after the you stopped, you [sic], if know? remained say. seconds, seconds, I about five would “A For a matter “Q more or less? Could have been Not been “A More or. less. less because car had say five ten so let’s between seconds. two three seconds waited stopped? “Q Very “A happened And then what after car well. my right sign Well, a fellow on the with a his noticed curb hand. you sign “Q kind of a it was? Could see what sign. no left turn “A I observed it to be a “Q “A holding init hand? How was he approximately sign out into street a foot into He had the protruding it was a maroon-colored metal base street. base end of perhaps two feet in front ahead of me about about a foot into the street of the my right fender of car. “Q sign pointed? In direction was *17 the court objection sustained of defendant’s to tbe counsel following question put to “Prior plaintiff: to to coming a Mr. did Collins, you any signals make stop, you were about to stop?”
Kalua’s “I statement to told him be plaintiff, came to a stop suddenly too for me not of a to is time,” pointed direction, sign pointed base “A It in the was was Aloha Motors. the direction of sign? “Q “A He had hand did he And in which hold the sign in both hands. “Q “A I happened after And what that? thought going I that he him across because was to motioned sign protruding into cross in front me with the the street. “Q coming Collins, you any stop, signals a did Prior to to make Mr. you stop? to were about object question being leading sugges- “MB. I to the is CHUCK: and tive, Your Honor. Objection “THE COUBT: is sustained. you “Q “A way you stop, Mr. Would describe came to a Collins? Well, emergency stop I because had time to wasn’t sufficient slowing of me observe the ear ahead down. “Q you exactly you stop? Would describe how made the stop. “A It was normal “Q you your Well, your did do with hands and and what feet so forth? object question being sugges- leading I “MB. CHUCK: and tive. “Q leading. Trying get to is not the— you your feet, any- “THE What did if COUBT: do with hands and thing? “Q you right, anything. your if That did do with hands What feet? My my my my feet, right my foot, “A on brake foot was car and my steering making left hand was on the wheel because I can recall gesture sign go cross, ahead the fellow with the I believe. you “THE COUBT: Can read that back? “(The Beporter.) answer of the witness read back “Q your steering you Was left hand on the wheel after before or stopped? “A I don’t recall. “Q you you going Would take the witness stand? How fast were be- you stop, fore Mr. came to a Collins? say approximately “A I’d 15 to 20 miles an hour I because was flashing observing light approaching red intersection with naturally. caution “Q you you anyone anyone was, And before note did you? particular behind No, “A I did not. “Q you you your now, Well stated that motioned to the man with you right Why your right hand. did motion with hand? standing my my right “A He was ahead of and I car can recall , jury permitted could be character
substantial *18 clear that Kalua’s statement return verdict. to applied of his defective because where, to this situation him too for to time. the sudden was brakes, working not and that that his brakes were Kalua testified empty the track loaded with bottles he had driven prior with defective brakes. He was miles to the accident per travelling hour and was 30 to 20 to 25 miles about plaintiff’s plaintiff’s car car. When came feet behind pressed stop, foot but did down on his to a he brake, reaching remember for the emer- He not not hold. does any gency nor is there evidence it was hand brake, testimony prior no as to collision. There is used crashing any into taken Kalua to avoid other measures why plaintiff clearly plaintiff’s Kalua understood car. [plaintiff] stopped. reason he Kalua testified “that the laying thought I because fella was was for, just putting up sign, cone had finished traffic out plaintiff’s sign!” first noticed car when it Kalua traffic moving slowly, lengths ahead of three car which him, was up gas.” Kalua saw the man Kalua “to ease caused stopped. sign, I remain me for an indication that would was looked at going said, protruding into the so I that he I street assumed as my car. cross in front to your you right “Q hand was for what motion made with And purpose? cross, indicating go I re- “A direct ahead and that would To him stopped. main many you this, many “Q seconds, if can do how seconds would How you you approximately stopped? remained estimate say approximately “A I ten seconds. would “Q less? More or Ten I had in- “A That’s seconds after observed the fellow correct. dicating going' that he was to cross. “Q happened? And then what thing Well, impact “A the next that I recall was a sudden and crash- my my ing hurdling though [sic] ear even I sound and forward had being power foot on the violently brake at the time and I can recall thrown being against against steering the seat and back thrown flying through smashing my helplessly wheel and air head object against above windshield.” From the testimony traffic cones on the street.2 laying one conclusion. The traffic only there is situ- Kalua, the plaintiff ation collision indicates that prior to a It is from Kalua’s testi- stop. apparent down slowing could have been deceived mony that was not and not being operated. the manner ear plaintiff’s “stop am car came to a unable conclude There suddenly” too for Kalua to in time. is absolute- had ly no his car operated careful and manner. prudent
moving? noticed it? ahead of way? you, an hour? than a did section and Atkinson Drive intersection in you approached tion? “A “Q “A “Q “Q “A It was slow. “Q “Q “Q “A Three car “A I would “Q Three car— “A Not at that time. “A I “Q A car? “A That’s “Q “A Yes. “A It could have been. “A I was in second “THE COURT: Ladies and “Q “Q “(Affirmative “Q “WITNESS you “MR. how far was that car ahead of Was it Did And Yes, Did see. And was the Thirty, Three car or three truck Not at that I All car? And [By Mr. notice ahead of noticed you? CORBY right. it was. what, you you you You right. going thirty-five say were in second *19 [Kalua] : Corey] notice notice a say you lengths. reply from the if ear. As three car time. fast anything, [Plaintiff’s counsel] Kapiolani you gear. any other, any any persons : Could you? feet. noticed Very About car, slow? approached lengths. did gear? the first time lengths? gentlemen, Boulevard and Atkinson Drive intersec- well. The ear that Jury box.) 20 some you have been a miles, connected do when cones? you other : 20 your truck, what, How fast are at that Kapiolani miles you things you hearing you little noticed an hour. first noticed time you ahead of those more than 20 miles were Boulevard noted ahead of when it, this? cones in you going was the car if you anything, you that' inter- other first any car 434 plain believed Kalua that assuming jury
But
signal
tiff did
of his intention
stop suddenly without
contributory
in itself
not establish
this
does
stop,
in the absence of
evidence to
a direct
other
show
negligence
connection
the sudden
colli
causal
between
cause
proximate
and that
the sudden
sion,
injury. See
v. Ku
of the collision and plaintiff’s
Grace
Mitchell v.
47
386 P.2d
876;
Haw.
malaa,
281, 285,
872,
P.2d
Dzurik v.
45
363
969, 973;
Haw.
Branch,
128, 131,
44
Fuller v.
435 denly is not a merely legal a factual basis conclusion, stop a of What would constitute a finding negligence. be one adequate warning might without where there thing no following reason for of vehicles to anticipate drivers something quite every a and different where there was stop reason cones to that out traffic suppose person laying a and a a sign require moving would all vehicles stream of traffic to come to a halt. 224 See v. Caraway Behrendt, S.W.2d 512 55 York Civ. Shaw v. (Tex. Malone, App.); Vienne 154 Leg. Rec. v. 28 So. 2d Chalona, (La. 150; 62 Schlue v. Missouri S.W.2d Transp. App.); Co., Pacific Cole v. (Mo. Wis. N.W.2d App.); Phephles, 755.
In the order for defendant to avoid he must liability, establish causal preponderance evidence, connection plaintiff’s negligence between colli- The mere inference came sion. vehicle to sudden is not in stop without sufficient warning itself to establish this Proximate necessary causal relationship. cause must Dmrik be never v. proved presumed. is There is Tamura, supra.' no evidence record, even to show that sudden without scintilla, warning proximate was the All cause collision. we have is the statement defendant he travelling about three car rear lengths to the and was plaintiff slowing down. But defendant has to prove by substantial this evidence distance and speed impossible avoid if this accident or to even had time, This good proximate brakes. criteria causation from the facts of case. judged will be this test as to contriblitory negligence plain- tiff under . whether he .circumstances is acted as man in ordinarily vehicle. Reason- prudent stopping his care require anticipate able does not him the truck in the rear be following unable will *21 436 the
because
defective
when
rear
brakes,
ordinarily,
plenty
driver would have
of time and space within
avoid
collision.
proof
It
as to
on con-
would be
same
burden
tributory
if defendant had sued
negligence,
plaintiff
had made a
theory
sudden
negligence
plaintiff
if the
warning.
plaintiff asserts as
Then,
without
affirmative defense that defendant was contributorily
has the
plaintiff
because of defective
negligent
brakes,
the prox-
the defective brakes were
proving
burden of
In order to
this causal
imate cause of
collision.
show
plaintiff must offer evidence:
connection,
That the truck had defective
brakes,
(1)
That
and distance maintained be-
(2)
speed
could
his truck
operator
tween
have
vehicles,
the collision with normal brakes.
time to avoid
negligence
to consider the
majority opinion
fails
consequence
and its
in this
legal
partic-
of the defendant
from the
Rear-end
resulting
ular
collisions
situation.
defective brakes must be viewed
of a vehicle with
operation
the rear car is
ordinary cases where
differently from
brakes.
working
with normal
equipped
contributory
there was
assuming
negli
Furthermore,
in British Columbia Electric
enunciated
the principle
gence,
applicable
(1916)
R
v.
A.C.
Loach, L.R.,
y.
of the
will
Contributory
negligence
here.
if
damages
defendant,
him to recover
disentitle
avoided
result
might
due
have
care,
exercise
although not
the defendant,
when
applies
negligence.
subsequent
act
negligent
committing any
previous
negli
himself
incapacitated
has
negligence,
have avoided
care as would
such
exercising
from
gence
Little Rock Trac
See
negligence.
of plaintiff’s
result
responsible to that “situation should not be heard invoke and in trine, plaintiff.” contributory negligence theory by plaintiff. not tried on such a Since case was asserted contributory one of the defenses defendant causal relationship defendant must prove negligence, proximate —that cause of the accident. do defendant must that at the dis- prove In order to this, no chance Kalua had speed travelling, tance and necessity became stopping apparent after normal Kalua testified that a good even brakes. with him, hour of 20 25 miles an truck speed *23 25 to 30 feet to require it was that would day, loaded as that he with brakes. He also testified good truck He an hour. was about 35 travelling to miles was he “eased up gas” when plaintiff’s car, feet behind testify He did not slowing car was down. since at time he tried truck to his his when speed as it is 20 feet behind but plaintiff’s car, logical he was 15 to considerably time it particular assume that since he had than his to 25 miles speed less hour, gear.” truck “second his gas” “eased up his compared are When Kalua’s statements good distance for truck with brakes, to the stopping as good that had he only brakes, one conclusion; there in time avoid the accident. his truck could have contributory negligence, evidence of being Instead of clearly shows prove Kalua’s otherwise. statements of the collision. not the cause proximate inasmuch and remand for a new trial I would reverse notwithstanding move for judgment did not the verdict.