*1 633 litigаtion. is further there appears has where court
This to be an instance judgment Leg- for that of the chosen to substitute doing. any for so constitutional basis islature jeopardy question Callan of is involved. double No Transportation, Department Commonwealth, of v. See, also, 163. Ct. 339 A. 2d 19 Pa. Commw. Department Vehicles, 172 v. Motor Neb. Prucha 415, acquittal we held that an 110 N. W. 2d where charge driving intoxicated does not while prevent for refusal administrative revocation sub- implied of the consent law. to the chemical test mit appeal from the District Court the direc- On an revocation, the admission into evidence of a tor’s judgment subsequent proceeding criminal some justify impossible on basis relevance materiality. appeal on is on li- The burden grounds Mackey to establish for reversal. v. censee Department Vehicles, 194 Neb. Motor Director 707, 394. Sedlacek establishes no such 235 N. W. 2d judgment would reverse in this case. basis affirm revocation of the Court and District Department the Director Motor license Vehicles. joins in this dissent.
Brodkey, Silvey Inc., corporation, Compаny, Nebraska G. Engel, appellant, Louis W. 2d
284 N.
Filed October 1979. No. *2 Brogan, appellant. Byron Brogan for J. of Galvin & Boyd, Smith, Smith & for J., Boslaugh, McCown, Heard before Krivosha, C. and Clinton, Brodkey, White, Hastings, JJ. J. White, damages an action
This is for in the District Court County for Dakota result of a no-contact acci- May on The dent case was tried to a jury returned a verdict in favor of the and the defend- plaintiff appeals. We reverse and ant. remand. May day plaintiff corpora- 9th On the the through employee, Virgil tion, operating Schroder, its semitruck, attached, the trailer Highway on U. southbound S. 77 south of Dakota City, traveling Nebraska, in the same direction as Engel. defendant, the Louis G. Both were slower-moving According an unidentified vehicle. plaintiff’s plain- accident, to the tiff’s truck version the pulled passing
had into the lane and had drawn abreast of the defendant’s car when the de- suddenly fendant accelerated and turned into the passing highway forcing northbound lane of plaintiff suddenly violently apply to and ultimately brakes. Plaintiff’s driver lost control of truck, skidded, tires of his semitruck and the portion truck left traveled and en- causing overturned, tered the east ditch where damаge substantial to truck. The defendant’s pulled to version was passing the effect that he had into the prior truck, lane time in to the appeared and that he accelerated as the truck to be gaining appeared apply on him. The truck then go brakеs, control, lose into the ditch. assignments only error, are
There four one plaintiff- opinion. in this will be discussed which giving appellant erred asserts that the court testimony con- 12: “You have heard No. struction allegedly cerning a witness made statements may prior with his be inconsistent trial which to this testimony has been at this trial. This purposes solely impeachment to aid for admitted credibility estimating the witness and weight testimony. given to his to be determine the only purpose consider limited You prior declared in not as facts statement(Emphasis supplied.) only introduced out-of-court statements any party of the defendant. to the action were those given to Patrolman Yosten at State In a statement “ * * * scene, he started defendant stated: pass and did not see the vehicle al- a vehicle passing rеady this time he did lane and at of traffic and did to return to his lane ob- have time *3 go vehicle into the ditch.” The wit- the other serve Jay Smith, ness, testified that a conversation with response question, to the “How did defendant happen?”, the defendant answered: pass pulled was in “He had out to the car that front up any- he that as he looked didn’t see him and body apparently him, the truck behind because spot.” In a him in his blind written state- behind May 11, 1976, evidence, admitted into the de- ment of lengths “I was about four car be- stated: fendant up length ran to about оne car and the car and hind pulled got completely and into the lane. out way or so out into the left lane about 3/4 my I saw a truck in outside rearview mirror. when nearly about in the left lane so and 3-3 He was 1/2 lengths the first I behind me. This was even car he was around.” knew from evidеnce another
The trial court excluded by witness, a Charles J. of the defendant statement passenger Raymond III, in the defendant’s car. a 636 proof
An offer was made to the effect that: “Mr. Engel person or the who as could identified testify driver this unit would he had * * he stated owed this truck *.” driver his life Al- though assigned error, not statement of the obviously defendant was admissible. admissions by party upon a action are a material matter ad- against original him as evidence. Scarbor- missible. ough Inc., Aeroservice, 749, 155Neb. 53 2d v. N. W. given by
The instruction
the trial court did not al-
jury
low
to consider as evidence the facts con-
Notably,
tained
the defendant’s
statements.
version
the accident varied from statement
plain
prejudicial
statement.
The error was
plaintiff.
It
is true that
counsel at the
object
instruction conferenсe did not
to the form of
merely requested
the instruction and
the word “wit-
be deleted
nesses”
and the word “defendant” be in-
counsel,
cluded. Plaintiff’s
unaware of the error in
may
instructions,
the court’s
have invited the court
wrongly.
to instruct
It is
rule
that this court will
normally
properly
consider instructions not
ob-
jected to and raised
aat motion for new trial. Brei-
Olson,
ner v.
195 Neb.
237 N.
2dW.
118. How-
duty,
ever, the trial court is under a
on its own mo-
correctly
tion, to
instruct on the
law
this court
cognizance
plain
take
error
in instructions
probable miscarriage
justice.
indicative
оf a
Betzer,
352;
Barta v.
Neb.
N. W. 2d
Nat.
Savings
Bank of Commerce Trust &
Assn. Mit-
plain-
chell,
203 Neb.
I concur in and new reversal believe, however, trial. court should also have assignment of error which an additional considered justifies Should this error recur on also reversal. appeal may again required trial, the new defendant obtain the verdict. should the question relates to the The error investigation police at officer who made During scene. cross-examination that accident you “Q- occurred: Did list a contributing report factor on this to the cause of this аccident? object going I’m to this line
MR. BROGAN: invading province questioning, Honor, as Your jury; calling for a conclusion for which it’s there proper no foundation laid and ask the Court to re- (sic) opposing inquiring counsel to strict further into this has to decide. matters which THE COURT: Overruled. He MR. answer. you repeat question
BOYD: Would please? him, you contributing (By Reporter) Did list a factor
Q- report particular accident as to the cause of on this this accident? A- I did. — your stating factors, what
Q- What you your was, factors lead cause what conclusion repоrt? making that statement My personal of the accident A- observation own scene. you testi- the skid marks
Q- This would include length beginning involved, them, to, fied Silvey resting place vehicle? the final Yes, A- sir. contributing cause this
Q- did list as a What accident? objection, Honor. Your BROGAN: Same
MR. may answer. THE Overruled. He COURT: speed. Exceeding A- safe
Q- For which vehicle?
A- Vehicle number 1.”
Immediately testimony, before that the “Q- had been adduced from witness: From point you practical view, do make ever a deter- you speed as to mination based on what observe particular involved in an vehiсle accident? A- I have on accidents. on this accident?
Q- Did No, A- sir.” “opinion” defendant-appellee
The defends this tes- timony serting “expert” by of this that or “skilled” witness as- provisions was admissible under pro- 27-704, of sections 27-702and R. R. S. which specialized scientific, technical, “If or vide: knowledge will assist trier of fact to understand issue, or to determine a fact a wit- qualified by knowledge, skill, ness perience, as an ex- training, may testify education, thereto of an § 27-702, in the form or otherwise.” R. R. S.
“Testimony in the form of an or inference objectionable otherwise admissible is not because it embraсes ultimate issue to be decided § 27-704, trier of fact.” R. R. S. 1943. a member of the Nebraska State Pa- qualifi-
trol, not see did the accident occur. His cations were as He follows. had been a member patrol years many for 14 and had conducted vestigations motor vehicle accidents. In present position case, he observed the of the ve- accident, hicles after the made measurements at photographs scene, and took various including involved, scene and the vehicles tire marks made truck. He also made point measurements the tire marks of the distance from the where began to the front of the truck at the place finally pit. where came to rest in the borrow He did not measure the skid marks themselves. photographs of the officer and the solid, indicate the tirе marks were not but of a “skipping type” opinion, by caused, in the officer’s tractor carried no trailer and no the fact load. operators officer also took statements from the including vehicles, the statement referred of the two majority opinion. to in the that the to be observed first all witness did
It is directly testify his rate of directly give speed, that it was a con- nor permitted testify tributing He was to that as to factor. *6 report. suggest put I in his what went he what clearly hearsay. report the was inadmissible into In this opinion indirectly pеrmit instance, used to was the “contributing as to cause” of the witness to jury. presented to the It should not have been developed. permitted, reasons which will stated he made no determination The witness qualify speed. to foundation was laid him to de- No speed from skid mаrks. Neither were termine the weight truck, the of the condition the or tires degree brakes, nor the of friction between the tires attempt the surface evidence. No qualify give the to made to witness an was speed moving person- vehicles not ally him. observed suggest, аll, first of that since the witness testi- speed, no he he made determination was not
fied express opinion, lay qualified either as a to wit- expert, part speed or as an as to the the ness the played the the causation of accident. truck There suggest speed nothing whatever to of the is truck applicable speed limit, or either exceeded speed existing excessive under the then cir- speed, 30, 40, cumstances. whether or 55 miles contributing wholly per hour, as a cause negli- irrelevant speed was of evidеnce it can be said unless suggest gence. to not a scintilla There is speed posted speed limit. of the excess the cir- speed under was excessive Whether upon not within depended factors cumstances personal knowledge of the officer. Such factors vehicles, would be the relative location of the two speeds, they their moved into the relative and the relative times
passing lane. It seems to me that it plain permit officer, was layman error whether as a expert, give opinion,
or an аlbeit directly, speed of the truck. commentary pertaining to Rule N.C.L.E.,
on the ultimate issue as contained in Evi prepared by dence, 1975, Professor G. Michael Fen Creighton University ner, Law, School of summarizes principles applicable and cites the authorities. “ summary is as follows: ‘The abolition of the ultimate issue rule does not lower the bars so as to opinions.’13 lay opinion admit all If the is either not ‘helpful’ rationally to the trier of fact or not based on perception it will be excluded expert opinion under Rule 701. If the does not ‘as fact, sist’ the trier of it will be excluded under Rule probative If 702. value of the is substan tially outweighed by danger prejudice, confu repetition sion, delay, needless be ex Finally, gives cluded under Rule Rule 705 judge some him control over too broad an *7 giving require underly the disсretion to that the ing facts or data be disclosed before the can given.'4 example, be For negli gence party'5 of excluded, would still as neither helpful nor any assistance to the trier of fact. In any probative event, value which such an might generally have outweighed by would prejudice and confusion which it would cause.” Although clearly qualified the officer was as an investigator, accident qualify there was no foundation to him as an in the reconstruction of ac- physical cidents from and scientific evidence. His givеn totally without consideration of previously the relevant factors In mentioned. addi- testimony tion, ‘‘helpful,” was not nor did it determining of either “assist” the the issue negligence or to me causation. It seems obvious clearly outweighed probative any, value, that by if prejudiсe and confusion it would cause. merely lay If as a we are to consider the officer also inadmissible be- “rationally perception cause it was not based on the Perception 27-701, § of the witness.” R. R. S. 1943. personal in this context means observation. See сommentary to there cited. Rule 701 and authorities Op. supra. Cit., W. J. Myron Tuel, appellee, Debra Buchele, appellant. W.
formerly Buchele, as Debra known 284N. W. 2d 564 23, 1979. No. Filed October appellant. Amdor, for Michael W.
Larry Fugit, F. Heard before McCown, Boslaugh, Krivosha, C. JJ. Hastings, Brodkey, Clinton, White,