Abbott v. Hayes

• Decision Date: 05 May 1942
• Citation: 26 A.2d 842
• Parties: ABBOTT v. HAYES et al.
• Court: New Hampshire Supreme Court

26 A.2d 842

ABBOTT

v. HAYES et al.

Supreme Court of New Hampshire. Carroll.

May 5, 1942.

[Copyrighted material omitted.]

Transferred from Superior Court, Carroll County; Johnston, Judge.

Actions on the case for negligence arising out of a collision between an automobile and truck, by Chester M. Abbott, administrator of the estate of Howard O. Grant, deceased, against Robert W. Hayes, and Louis Vogel, doing business as Vogel & Hadley. Trial by jury resulted in a verdict for Robert W. Hayes, and a verdict for plaintiff against Louis Vogel. The case is transferred by Johnston, J. on defendants' exceptions to denial of motions.

Judgments on the verdicts.

Two Actions on the Case for negligence arising out of a collision on November 10, 1939, between an automobile operated by the plaintiff's intestate, and a truck operated by the defendant Hayes and owned by the defendant Vogel, which resulted in the death of Howard O. Grant, the plaintiff's intestate. Trial by jury after a view) which resulted in a verdict for the defendant Hayes and a verdict for the plaintiff against the defendant Vogel. Transferred by Johnston, J., upon the defendants' exceptions to the denial of their motions to strike out certain portions of the plaintiff's specifications of negligence; to the admission and exclusion of evidence; to the denial of their motions for nonsuits and directed verdicts; to the allowance of portions of the plaintiff's argument to the jury; to the denial of their requests for instructions and to the charge as given, and to the denial of the defendant Vogel's motion that the verdict be set aside and judgment entered for him notwithstanding the verdict. The automobile was proceeding in a northerly direction on Route No. 16, a public highway in the city of Rochester, N. H, and the truck southerly at the time of the accident The facts are stated in the opinion.

Cooper, Hall & Grimes, of Rochester (Burt R. Cooper, of Rochester, orally) for plaintiff.

Sewall, Varney & Hartnett, of Portsmouth (Chas. F. Hartnett, of Portsmouth, orally) for defendants.

BRANCH, Justice.

Before trial, each of the defendants filed a motion for specifications of the negligence relied upon by the plaintiff. In accordance with these motions, the plaintiff filed, in each case, allegations of excessive speed, violation of the law of the road, and failure to keep to the right of the center. In the case of Hayes, the following sentence was added: "and such other act or acts of negligence on his part as the evidence may develop in the course of the trial." In the case of the defendant Vogel, the following sentence was added: "and such other act or acts, or failure to act, on his part, or on the part of his agents, as the evidence may develop in the course of the trial." Defendants' motion to strike out the above sentences was denied, subject to exception, and the cases went to trial upon the declarations as above amended. The order of the trial court was, in effect, a finding that the specifications were adequate and is not open to review by this court. Although this order did not contain the words "without prejudice" as in Brown v. Barnard, 91 N.H. 58, 13 A.2d 470, it was by its very nature interlocutory and tentative in effect. If at the trial it appeared that the defendant was prejudiced or surprised by the issues presented, a motion to modify the order should have been granted. No such motion appears to have been made. No claim of surprise or prejudice was made at the trial. Hence it cannot be found that any injustice was done by the order and the exception is accordingly overruled.

The insistence of the defendants that their motions for nonsuits and directed verdicts should have been granted necessarily rests upon the contention that the testimony of the two persons, who claimed to have been eye witnesses to the accident, was uncontradicted and must be accepted as true. These were the defendant Hayes, the driver of the truck, and the witness Otis, who testified that he was following closely behind the truck and saw the collision. They both testified that the truck was at all times on its right side of the road and that the Grant car cut out suddenly into the path of the truck when so close to it that a collision was unavoidable. There are two obvious answers to this contention which preclude its adoption: 1. Upon the evidence it was a doubtful question of fact whether Otis was an eye witness to the accident, and 2. It is well nigh impossible to reconcile their version of what occurred with the admitted damage to the two vehicles, which indicated that the right front end of the automobile was in collision with the right front end of the truck, at an angle of 45° according to the testimony of the plaintiff's expert. These two considerations alone, without further reference to the testimony, preclude the adoption of the defendants' theory as to the cause of the accident.

It was the contention of the plaintiff that when the accident occurred, the truck had entered the easterly lane of the highway along which Grant was approaching. This contention received some confirmation from the testimony of the witness Sparks, who also claimed to have been following the truck, that after the truck passed over the crest of a slight grade just before the accident "it began to cut toward the center of the road * * * From all appearances the truck was pulling toward the center of the road * * * and as the crash came, the truck seemed to slide sideways like and cut more to the left." It was further supported by the evidence as to the damage to the two vehicles above referred to, and the plaintiff argues that it was further confirmed by the evidence as to the marks upon the highway after the accident. The evidence of these marks was extremely confused and the inferences to be drawn therefrom were highly problematical. Nevertheless the existence of the marks and their significance was plainly for the jury.

The verdict of the jury absolving the defendant Hayes from blame in causing the collision presents a further question as to the liability of the defendant Vogel which was raised by his motion for judgment notwithstanding the verdict. If the presence of the truck in the easterly lane was not due to the fault of Hayes, upon what theory can the liability of the defendant Vogel be sustained? The answer of the plaintiff is that the presence of the truck on the wrong side of the road was accounted for by the facts that it was overloaded, unbalanced and improperly equipped, and driven at a speed which, under these circumstances, was excessive, although Hayes, by reason of improper instructions did not know this to be so. There was evidence that the truck, originally designed to carry 1 1/2 tons, had been equipped with a larger and higher body and was actually carrying a load in excess of 6 1/2 tons at the time of the accident. There was also evidence that the manufacturers of this truck were prepared to furnish additional equipment, consisting of stronger springs, booster brake and a governor to control speed, which were designed to increase its capacity to 12,500 pounds, gross weight, but that no equipment could make safe the operation of this truck with a gross weight of 19,000 pounds such as it was carrying at the time of the accident. There was evidence that a truck thus overloaded had an abnormal tendency to skid on curves when traveling at a speed of 40 to 45 miles per hour, which would clearly result in forcing the front end of the vehicle either to the left or the right, depending upon the direction of the front wheels at the beginning of the skid. Plaintiff, accordingly, argues that the jury was entitled "to return a verdict against Vogel, based on * * * Vogel's own fault in equipping and loading the truck and entrusting it to Hayes without proper instructions or warning." We are unable to say, as a matter of law, that the jury might not properly have taken this view of the evidence. The motions for nonsuits and directed verdicts were properly denied.

Numerous exceptions to the admission and exclusion of evidence appear in the record, many of which fail because they reflect the preoccupation of counsel with their own theories of how the accident occurred.

Counsel for the defendants excepted to the examination of the defendant Hayes with reference to his experience in driving a truck like the one in question, with a similar load. The answer of the witness was favorable to the defendants and, for this reason amongst others, they take nothing by this exception.

The evidence as to the habits of the decedent was properly admitted, and the requested instructions with reference thereto were properly denied. Buxton v. Langan, 90 N.H. 13, 3 A.2d 647.

During the examination of the witness Manning, the plaintiff inquired whether, since his testimony on the previous day, he had examined a...