298 N.W. 256 | Minn. | 1941
1. First to be considered is the claimed prejudicial error in admission of a statement made by Erickson on the day after the *353 accident to a Mr. Day, a claim adjuster whose company had insurance on the Johnson car. Before it was admitted, Day testified that he wrote down Erickson's story as it was given, that he gave it to Erickson, who read it over and acknowledged it as "true and correct" and that the statement was the same as given by Erickson. Upon the advice of another, Day said, Erickson refused to sign the statement. Thereupon the statement was offered and received solely for the purpose of impeaching Erickson.
At the trial Erickson asserted that he first saw Johnson when he was about 500 feet south of the intersection. At that time Erickson claimed to be 200 feet away. He next looked when he was 25 feet from the intersection. Johnson was then 100 feet away. He then proceeded into the intersection, so he claims, where he was struck by Johnson. But in the statement, after saying he first saw Johnson 500 feet south of the intersection, Erickson stated: "I did not pay any attention to the Johnson car after that until I was entering the intersection. I then saw the Johnson car just a split second before the impact." Further, on the stand, he said that he had no judgment as to the speed of the Johnson car when it was first observed, while in his written statement he said that the Johnson car was then traveling from 45 to 50 miles per hour.
The admissibility of this statement is attacked for lack of foundation and incompetency. This statement was made by a party. "An admission made by a party to an action in relation to a relevant matter is admissible against him, whenever made, and without laying any foundation therefor." 2 Dunnell, Minn. Dig. (2 ed. Supps.) § 3409. This statement was received solely for the purpose of impeachment. Where the impeachment of an ordinary witness by prior inconsistent statements is attempted, more particularity in laying a foundation is necessary. 6 Dunnell, Minn. Dig. (2 ed. 1932 Supp.) § 10351(b); Horton v. Chadbourn,
We think that the preliminary questions asked by plaintiff's counsel of witness Day were sufficient under the circumstances to lay any groundwork essential for the admission of this statement. By his acknowledgment that the assertions in the statement were "true and correct," Erickson made them his own. Thereafter, the trial judge was perfectly justified in concluding that enough had been shown to connect Erickson with the statement. Its weight was, of course, for the jury. Any supposed variance in the statement as tendered in evidence from the statement as given to Day was a fact for them to decide. Snyder v. Wolford,
Although the statement was offered and received solely for the purpose of impeaching Erickson's testimony at the trial, it was an admission, and as such was evidence of the facts in issue. McManus v. Nichols-Chisholm Lbr. Co.
2. The trial judge permitted a witness who was working on top a haystack about half a mile south of the intersection to give his opinion of the speed of the Johnson car as it went north on the Sunrise-Center City road. Defendants claim that only if the speed of the car was established at the intersection could this opinion be allowed as corroborative. See Quinn v. Zimmer,
3. Without unnecessary review of testimony, we are convinced that the case presented jury issues both as to Erickson's negligence and Johnson's contributory negligence. The jury likely concluded that Erickson's credibility was very questionable. From the evidence they might have concluded that he was proceeding east toward the intersection at a speed estimated variously from 40 to 50 miles per hour; that without keeping proper lookout for a car known to be approaching from his right Erickson nevertheless negligently drove into the intersection without slackening his speed and there blocked the passage of the Johnson automobile.
Similar doubts about Erickson's testimony may have prompted the jury to conclude that the Johnson car was farther into the intersection when first seen by Erickson than he would admit. If *356 so, Johnson would have been in possession of the right of way. While the details of the accident are by no means clearly outlined, yet the physical facts and testimony justify the jury's conclusion that Johnson had the right of way and that it became apparent to him too late that Erickson did not intend to yield, with the result that the accident could not be avoided. Their conclusion that the collision was the product of Erickson's failure to use due care and not to culpability on Johnson's part is sustained.
Order affirmed.