Ratton v. Busby

Sam Robinson, Associate Justice, dissenting.

This case grew out of a collision between two airplanes. There does not appear to be anything particularly complicated about the facts. It is just a question of who, if anyone, was negligent.

One of the issues on appeal is the action of the trial court in propounding to the witnesses approximately 165 questions in the course of the trial. The magnitude of this number of questions will be understood when the fact is taken into consideration that a total of only about 3,000 questions was asked all the witnesses. Appellee was the plaintiff, and of course had the burden of proving negligence on the part of the defendant, appellant. The plaintiff was represented by able counsel fully capable of presenting properly their client’s case and, in fact, looking-after their client’s interest in any court. Two of the allegations in the complaint, of negligence on the part of the defendant, are as follows: “In failing to keep a lookout for the plane in which the deceased was flying”; and further, “in failing to pull his plane directly up instead of giving it the throttle and more power when he discovered or should have discovered the plane in which the deceased was flying”.

Plaintiff introduced as a witness one Bill Farrell, an experienced airplane pilot. During the cross-examination of this witness, defendant introduced a small model representing the Beechcraft Bonanza low wing plane operated by the defendant at the time of the collision. One of the principal issues was whether the defendant from his position in the Bonanza should have seen the other plane. Immediately upon the introduction of the small model, the court took over the examination of the witness and at this point three pages of the record are required to record the examination of the witness by the court on how the plane was constructed, the dimensions, etc. Finally counsel for the defendant objected to questions propounded by the court. Apparently the effect of this testimony brought out by the court in the eyes of the jury could have been that the defendant was situated so that he could have seen the other plane.

In his answer defendant had alleged that the Cessna plane occupied by the deceased had dual controls and that the deceased was negligent in permitting the student pilot, Billy Wayne Robinson, “a totally inexperienced pilot, to. assume control or joint control of the plane with the decedent Busby”. In the cross-examination of the witness Farrell, a small model of the Cessna plane occupied by the deceased was introduced in evidence. At this point the court took over the examination of the witness and developed the fact that the plane did not have dual controls. This evidence refuted the allegation in defendant’s answer to the effect that the deceased was negligent in allowing the student, Billy Wayne Robinson, to assume joint control of the plane through the use of the alleged dual controls. Of course, this was a point very much in favor of the plaintiff, and the effect on the jury was much greater than if the point had been developed by questions propounded by counsel for plaintiff. Moreover, to preserve the record properly, counsel for defendant was compelled to object, in the presence of the jury, to questions asked by the court. This may have put defendant’s counsel in an unfavorable light before the jury.

Counsel for appellant in this case are lawyers of many years’ experience at the bar; they are known by the members of the legal profession of this State as lawyers of ability and lawyers who have the utmost respect for the courts. The last thing such lawyers would want to do would be to take exceptions to some action on the part of the trial court that was initiated by the court, and yet that is what has happened in the case at bar. Through their sense of duty to their client counsel for defendant felt that they were compelled to move for a mistrial after the second day of the trial, because of questions propounded to the witnesses by the court.

Usually cases that are tried before juries by able lawyers can be decided either way. Most jurors are inexperienced, and in many instances even after the arguments have been completed and the case has been submitted to the jury, many jurors are undecided which way they should vote. They are uncertain which way their verdict should be. If the trial court has given any indication of the court’s opinion about the matter, many jurors feel that it would be safe to follow along that line.

Witnesses are put on the stand to prove relevant and material facts. Of course, the evidence is not admissible unless it is relevant and material. When a fact is developed by questions asked by the court, such fact carries far greater weight than if it had been proved by testimony developed by counsel for the side helped by such facts. Moreover, when the court asks a large number of questions, there is extreme danger of one or more jurors getting ah impression from the questions asked and the facts thereby developed, that the court has an opinion on the merits of the case, when in fact the court has no such opinion. And this is the very thing that may have happened in the case at bar, from the extremely large number of questions asked by the court.

This is not to say, however, that the court must sit quietly by and see a miscarriage of justice take effect because a lawyer on one side is completely outclassed by his adversary, nor does it mean that the trial court should not aid a young and inexperienced lawyer who needs help. From time immemorial it has been the custom and practice of courts to take care of situations of that kind. But where both sides are represented by counsel of the caliber appearing in the case at bar, they should be allowed to try their case and develop it according to their own judgment, complying, of course, with the rules of evidence.

In my opinion appellant’s motion for a mistrial should have been granted and for that reason the judgment should be reversed.

I am authorized to say that the Chief Justice and Mr. Justice Ward join in this dissent.