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Jim v. Budd6/9/1987
ALARID, Judge.
In this wrongful death action, plaintiff appeals a judgment entered on a (special interrogatory) jury verdict in favor of defendant. Plaintiff also appeals the trial court's denial of her motion for new trial. Plaintiff claims five issues of reversible error by the trial court: (1) decedent's alleged statements to defendant were inadmissible under the hearsay rules; (2) plaintiff was prejudiced by not being permitted to lead defendant on direct examination; (3) defendant's counsel made prejudicial inquiries into plaintiff's collateral sources of income; (4) the trial judge was unable to exercise proper judicial discretion at trial due to personal distractions; and (5) cumulative trial error occurred, thereby prejudicing plaintiff's case.
Plaintiff's motion for new trial was grounded upon the same issues that plaintiff raises on appeal. Because we affirm as to each issue, we need not discuss the denial of a new trial.
FACTS
Defendant Budd, an independent trucker, went to Aztec Design Company (Aztec) in Farmington to have angle iron removed from the gates of his belly-dump tractor trailer. Simplistically, a belly-dump trailer is one which loads from the top and has gates on the bottom which open toward each other at an angle to allow material (usually dirt, rock or aggregate) to flow through the bottom and onto a road surface in a windrow-type pattern. Defendant's trailer was approximately 7 - 8 feet high and about 50 feet long. Each gate weighed between 700 and 800 pounds.
The gates on the trailer were operated by a switch in the tractor which injected air pressure into a cylinder in the trailer. The switch had three positions: open, closed and off. The system was designed to store the air so that if the tractor ignition were turned off, the air pressure would remain in the cylinder. A "bleed-off" valve on the air tank could be used to bleed the stored air from the cylinder in less than five minutes. That was not done in this case.
Plaintiff's-decedent, William Jim, was shop foreman at Aztec at the time of his death. Defendant had driven his truck to Aztec during the lunch hour when defendant and Mr. Jim were the only persons in the area. Defendant testified that, at Mr. Jim's request, he parked his truck in front of the shop while Mr. Jim gathered the tools he would need. Together they chained the gates open, hooking the chain to a bracket on the side of the tractor.
Defendant testified that Mr. Jim asked him to "' et the gates down against the chain'" in order to take any slack out of the chain. Defendant went to the cab of the truck and positioned the switch in the closed position. He returned to Mr. Jim and asked him if that was satisfactory, and Mr. Jim allegedly said "yes."
Mr. Jim crawled underneath the trailer and began working on the angle iron from a kneeling position. While he worked, Aztec's owner, Ulysses Bartmess, returned from lunch and conversed with defendant who stood by the side of the trailer. Bartmess testified that he had observed the manner in which the gates were chained to the bracket, and it looked to him as if the procedure had been done safely. Bartmess and defendant did not discuss that the tractor was left running and the air pressure continued to operate against the gates; neither did they discuss that the gate switch was in the closed position. Expert testimony revealed that because of a hairline crack in the bracket, the chain gave way and both gates closed on Mr. Jim at a force of approximately 49,760 pounds psi.
Defendant ran to the tractor and opened the
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