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Haghighi v. State8/27/2002
that his findings differed from Loumiet's results. Virginia supports this last contention by pointing out that United mentioned during closing arguments that Virginia did not ask Summers about the curve radius for fear that his opinion would contradict Loumiet's opinion based on Summers' measurements. While the comments of counsel for United do not properly reflect why Summers did not testify on this point and constitute an inaccurate and improper commentary on the evidence, the record shows that Virginia did not object; nor is this matter assigned and argued as error. Thus, while the comment was improper, as counsel knew that Summers' testimony had been restricted by the court's ruling, the matter was not preserved for appellate review. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (objection made to opposing counsel's argument after jury has retired generally is not timely and will not be reviewed on appeal); Martindale v. Weir, 254 Neb. 517, 577 N.W.2d 287 (1998) (in order to preserve, as ground for appeal, opponent's misconduct during closing argument, aggrieved party must have objected to improper remarks no later than at conclusion of argument). In conclusion, the remarks made during closing do not make the trial court's ruling excluding Summers' testimony of the curve radius of the "shoofly" where the Schwaninger-Haghighi accident occurred an abuse of its discretion.
Admissibility of Testimony of Speeds Driven Through "Shoofly."
Virginia asserts that the trial court abused its discretion by admitting the testimony of Martin and Higgins that they had driven the "shoofly" at speeds of or exceeding 45 m.p.h. and had seen others driving the "shoofly" without incident, because the defendants failed to establish the proper foundation and relevance of this testimony. She claims this testimony was unreliable, inadmissible, and prejudicial. Virginia bases this assertion on the fact that the witnesses did not testify that the weather and traffic conditions existing at the time they passed through the "shoofly" were substantially similar to the conditions existing at the time of the Schwaninger-Haghighi collision.
Martin testified that he drove through the "shoofly" several times a day during the construction period when visibility was low--and probably while fog was present--and that he could see the traffic control devices. Further, he testified that he observed others drive through the "shoofly" without problem and that 45 m.p.h. did not appear to be an unsafe speed. Higgins said he drove through the "shoofly" on a weekly basis and experienced no problem keeping his car in its lane while driving 55 m.p.h. Higgins added that the 2-year construction project was designed with the knowledge that inclement weather, including fog, would occur during that span of time.
We analyze Virginia's argument about this evidence from the standpoint of relevancy. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Neb. Rev. Stat. ยง 27-401 (Reissue 1995). The exercise of judicial discretion is implicit in determinations of relevancy, and a trial court's decision regarding relevancy will not be reversed absent an abuse of discretion. Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999). To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded. Id.
One of Virginia's allegations is that the defendants were negligent in setting a 45-m.p.h. speed limit for the "shoofly" because
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