Appeal from a no cause of action verdict. Affirmed with costs to defendant.
Under familiar principles of appellate review the following facts may be canvassed on appeal in this case:
Deceased had crossed Main Street, Salt Lake City, in a westerly direction between Cleveland Avenue and 13th South, not in a marked cross-walk, on a clear morning. He went to get a pillow to use in the truck in which he was traveling. Defendant, only eyewitness to the accident, was driving North on Main Street (a four-lane highway) in the outside lane following a car in front of him and one to the left in the inside lane, at about 2S-30 m. p. h. Suddenly the leading cars slowed down and defendant applied his brakes, and as his wheels were sliding, “I seen the man just as he came off the fender of the car, and that is the first time I had seen him,” and “I didn’t have no time to determine whether he had been running or what.” Decedent’s head struck the windshield, and he died without regaining consciousness. Drivers of the other cars did not stop and were unidentified.
The only evidence of defendant’s negligence offered by plaintiff was a fragment of a conversation one Kelly testified he heard between defendant and Kelly’s wife, who said defendant had remarked “I didn’t even see him” which evidence, over objection without merit,1 was expanded on cross-examination to include other statements of Mrs. Kelly to include her assertion that defendant also said “‘He ran into the side of my car.”
Plaintiff offered no evidence as to defendant’s speed on her case in chief, although that was one of the bases of negligence upon which she allegedly relied, but defendant testified thereafter that he was traveling 25-30 m. p. h. Plaintiff proffered in rebuttal the testimony of a police officer as to brake marks and moved to re-open the case for that purpose, but the testimony was objected to and excluded, and permission to re-open denied.
It is recognized that in cases like this the trial court has considerable latitude in admitting or excluding such evidence, which properly should have been introduced in the case in chief.2 Perhaps it-'.may have been as well to permit the testimony, but we see no prejudicial error in its exclusion, particularly since ample evidence, if be*21lieved by the jury, easily and reasonably ■could have pointed up decedent’s own negligence,3 — a conclusion not shared by plaintiff as reflected in the assignments of error in the giving of instructions as to •contributory negligence.
Other errors assigned had to do with refusal to instruct as to last clear chance and to the effect that a witness may be impeached by prior inconsistent statements. As to the last clear chance contention, the facts of this case do not lend themselves in any degree to the application of that doctrine, and as to the contention that the court should have instructed to the effect that prior inconsistent statements may ■impeach a witness, the general instruction that the jury might consider any fact or •circumstance which in the judgment of the jury affected the credibility of any witness, .and other instructions as to believability of false testimony were given that in substance took care of the objection.
WADE, McDONOUGH and CALLIS-TER, JJ., concur.. 20 Am.Jur. 463-4, Sec. 55Í..
. VII Wigmore, Evidence,. 523, Sec. 2113. >
. Sec. '41-6-79, Utah Code 'Annotated 1953.