Tobler

Plaintiffs, a couple and their two minor children, have appealed from a judgment entered on a verdict in favor of the defendants Chapman in an action in which they sought to recover for personal injuries suffered in an automobile accident involving vehicles driven by Mr. Tobler, Mrs. Chapman and a third vehicle driven by a Mrs. Drumm. The action was dismissed as to the Drumms after the taking of all the evidence, but before counsel had argued the case. The plaintiffs contend that the trial court erred in denying their motion for a mistrial following alleged prejudicial misconduct by the attorney for the Chapmans, and in refusing to give plaintiffs’ proposed instructions on res ipsa loquitur.

It is concluded that the remarks of which complaint is made do not constitute prejudicial misconduct necessitating a new trial, and that although the doctrine of res ipsa loquitur may have been applicable to the case on a conditional basis, there was no prejudicial error in refusing to instruct on that subject because under the circumstances of the case the jury must have accepted the defendants’ exculpatory explanation of the accident.

On July 9, 1970, Iren and Myra Tobler, along…