Avery v. Harms Implement Co.

McCORMICK, Justice

(dissenting).

Although I believe the trial court would have acted within its discretion in allowing fuller cross-examination of Harms, I would not hold the court’s rulings are reversible error.

The action is based on injuries suffered by George Munden when the tractor he was driving was struck from the rear at night on a country road by an automobile. The driver of the automobile testified she saw only a single white light on the rear of the tractor and thought it was the headlight of an oncoming car. Defendant Harms Implement Company had sold the tractor to Mun-den’s employer with that taillight on it and had repaired the wiring on the lighting system shortly before the accident.

The tractor was equipped with two white front lights mounted on the fenders, two white front floodlamps mounted to the inside of the front lights, an amber light located on the left fender which flashed to the front and rear, and a rear combination taillight which could be used as either a white floodlight or a red taillight. When the lighting system was working properly it had four switch settings, “off”, “D”, “B”, and “R”. The “R” position was used for fieldwork. It was the only position in which all four front lights would be on and the only position in which the rear light would be on as a white floodlight. It was the only setting other than “off” in which the red taillight and amber flashing light were not activated.

Plaintiffs’ theory was that at the time of the accident Munden properly had the light switch on a setting in which the taillight was supposed to show red but that because of paint flaking it appeared to be white. They were confronted with evidence that all four front lights were on at the time of the accident and that the amber light was not activated. They sought to explain this and other evidence tending to show that the light switch was in the “R” position by suggesting that the system was improperly wired and not functioning as it should have been at the time of the accident.

Harms Implement Company employee Tom Hegel, who purportedly repaired the tractor lights before the accident, was called as an adverse witness by plaintiffs and was fully examined concerning that event as well as the effects of proper and improper wiring of the lighting system. Harms’ later testimony depended on the assumption Hegel had repaired the wiring in the manner he claimed. His opinion that the mock-up was wired in the same way was admittedly based in part on “information . . . gained from the testimony in this lawsuit . .” Whether Hegel had in fact correctly performed the repair depended on his credibility rather than that of Harms.

The subsequent demonstration was thus predicated on Hegel’s testimony that the repair was properly done. Its purpose was to show the various lighting combinations which would result when the light switch was placed in available settings. The demonstration was indisputably accurate for that purpose.

Harms did not testify that the same conditions of visibility would exist on the highway as in the courtroom. Nor do I find an inference to that effect in his testimony. Plaintiffs sought unsuccessfully to cross-examine him about how certain lighting com*653binations might appear to a person approaching the tractor on the highway at night from the rear. The trial court may well have believed Harms’ opinion on that subject would be superfluous. The jury had the full picture regarding conditions at the time of the accident and was fully capable of drawing its own conclusions. See Hegtvedt v. Prybil, 223 N.W.2d 186, 189-190 (Iowa 1974).

If plaintiffs were seeking to impeach Harms through this inquiry they did not alert the trial court to that fact. Moreover, assuming that was their purpose, the cross-examination was hardly necessary to persuade an Iowa jury that conditions in the courtroom were different than they were on the highway.

Plaintiffs also complain of limitations placed on their cross-examination of Harms about operating procedures in repairing tractor lights. Harms did not testify on direct examination about repair procedures. He only said that the repair here was made by Hegel, who was a trained repairman. In fact plaintiffs’ were attempting to cross-examine Harms about the deposition testimony of his service manager Bill Zesiger, not about his own testimony. The trial court allowed some of this cross-examination and rejected some of it. I do not find any basis for holding the trial court abused its discretion in limiting this cross-examination.

Another major complaint of plaintiffs is a ruling of the trial court denying them the right to conduct a demonstration during cross-examination with the amber light disconnected. Under plaintiffs’ theory of the case the amber light may not have been working at the time of the accident. It would have been appropriate for the court to allow this demonstration during cross-examination. Nevertheless Harms offered to let plaintiffs use the mock-up later to conduct any.demonstration they desired as part of their own case, and plaintiffs rejected this opportunity. They did show the jury the lighted taillight without the amber light. No basis exists for finding prejudice from the trial court’s ruling on this subject.

In light of the trial court’s range of discretion in controlling cross-examination and the absence of prejudice from the rulings, I do not believe reversible error has been shown. Because I would also find the other assignments of error to be without merit, I would affirm the trial court.

HARRIS, J., joins in this dissent.