Alexander Laferriere v. Warren Gray

• Decision Date: 04 May 1932
• Parties: ALEXANDER LAFERRIERE v. WARREN GRAY
• Court: Vermont Supreme Court

160 A. 270

104 Vt. 366

ALEXANDER LAFERRIERE v. WARREN GRAY

Supreme Court of Vermont

May 4, 1932

February Term, 1932.

Evidence---Hearsay and Self-serving---Immaterial Evidence---Harmless Error---Competency of Lay Witness---Argument of Counsel---Necessity That Prejudicial Error Affirmatively Appear---Instructions of Court---Last Clear Chance Doctrine.

1. Testimony of civil engineer, indicating certain point on blueprint made from his survey to which he had measured from an undisputed point marked on such blueprint, and stating distance between such points, held not objectionable as hearsay and self-serving declaration by plaintiff.

2. Testimony of civil engineer as to certain measurements, if immaterial because involving location of certain points not shown to him at same time as another point concerning which he had testified, held not shown to have been harmful, if error.

3. Admission of immaterial evidence, not shown to be harmful, does not require reversal.

4. In ACTION OF TORT for negligence in collision of defendant's automobile with plaintiff's motorcycle, competency of police officer to indicate upon map approximate point where he found pool of oil was preliminary question for trial court.

5. Fact that police officer was permitted by trial court to indicate approximate point upon map where he found pool of oil was implied ruling as to his competency.

6. Trial court's ruling as to competency of witness is not revisable unless it appears from evidence to be erroneous or founded upon error in law.

7. Transcript held to disclose evidence which supported trial court's finding as to competency of witness.

8. To secure reversal for improper argument, prejudicial error must affirmatively appear.

9. Counsel's claim as to law, and reading of section of statute inapplicable to situation, in his argument to jury where jury were told both by counsel and court that they must take law from court, which was correctly stated in court's charge, including reading of pertinent statute held not affirmatively to show prejudicial error.

10. In action of tort for negligence in collision of defendant's automobile with plaintiff's motorcycle, held that court correctly submitted case to jury under last clear chance doctrine.

ACTION OF TORT for negligence in collision of defendant's automobile with plaintiff's motorcycle. Plea, general issue. Trial by jury at the June Term, 1931, Caledonia County, Bicknell, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Searles & Graves for the defendant.

S.E Richardson and Porter, Witters & Longmoore for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

This action is the outcome of a collision between the plaintiff's motorcycle and the defendant's automobile at the junction of Hastings and Railroad Streets in the village of St. Johnsbury, and, having resulted in a verdict for the plaintiff in the trial court, is before us on the defendant's exceptions.

The exact place of the accident was in dispute, and the first group of exceptions briefed by the defendant have to do with the admission of evidence offered by the plaintiff as bearing upon this issue. A civil engineer, called by the plaintiff, produced a blueprint map made from his survey of the general location of the accident, which was received in evidence without objection. He testified that just westerly of a certain catch basin there was a junction of the edge of the cement and an expansion joint in the cement which he marked "A." He was asked whether he measured from the point "A" to another point which was indicated to him on the occasion of his visit to the premises, and answered that he did. He was then asked to indicate the point to which he took the measurement, and, subject to defendant's exception answered that he marked it with the letter "B," to which exception was also taken. The next question was as to the distance between "A" and "B," and, again under exception, he answered that it was a little less than 60 feet. These three exceptions are briefed together, and the grounds so far as stated on trial are that the evidence was hearsay and a self-serving declaration by the plaintiff. But it was neither of these things. All the witness was asked to do was to indicate a certain point upon the map, for the purpose of giving its distance from another point which was not in dispute. Who his informant was, or what he said, did not appear, and, without further testimony showing the materiality of the point thus marked, the evidence would have been colorless. The fact that it was shown to him by someone merely identified it, and did not make his testimony objectionable as hearsay. As a matter of fact it was not the plaintiff who gave him the location of point "B," but a police officer who repaired to the scene of the accident shortly after it happened, and before the damaged motorcycle had been removed, and who, later in the trial, testified that he showed to the witness the spot where he found a pool of oil upon the cement, which was approximately at the point "B" as marked upon the map. It also appeared that this oil came from the motorcycle. That this evidence tended to show the place where the collision took place is too apparent to require further discussion. The foregoing exceptions are not sustained.

Further on in the direct examination, the civil engineer testified that another point was indicated to him for purposes of measurement, and was asked "Where was that point with reference to point 'A' on this map?" Subject to exception because hearsay and immaterial, he answered that he measured from point "B" to a point northerly beyond the range of the map, where there were some large elm trees. The objection of hearsay is covered by what we have already said in dealing with the previous exceptions. If, as the defendant argues, the evidence was immaterial because the location of the elm trees was not shown to have any relation to the acts of the parties and was not otherwise identified, we fail to perceive wherein the defendant was prejudiced by the ruling, which must affirmatively appear if the error is to be sufficient to cause a reversal. Higgins v. Metzger, 101 Vt. 285, 298, 143 A. 394; MacDonald v. Orton, 99 Vt. 425, 431, 134 A. 599.

The same witness was permitted, subject to exception, to indicate another point on the map, which he marked "C," and which he testified had been shown to him at the same time as the exhibition of point "B." The objection was immateriality, but without examining the merits of the ground of exception, it is enough to say that if there was error in this respect, it is not shown to have been harmful. Consequently the admission of it does not require a reversal. Fletcher v. Wakefield, 75 Vt. 257, 263, 54 A. 1012.

The exception to the denial of the motion to strike out the testimony of the civil engineer concerning the location of the various points above mentioned is sufficiently answered by what has been said as to the foregoing exceptions. No reversible error appears.

The competency of the police officer to indicate upon the map the approximate point where he found the pool of oil was a preliminary question for the court to decide before receiving his testimony. Shields et al. v. Vermont Mutual Fire Insurance Co., 102 Vt. 224, 246, 147 A. 352; Cairns, Exr. v. Mooney, 62 Vt. 172, 173, 174, 19 A. 225; Andrews v. Aldrich, 104 Vt. 235, 158 A. 676, 677. The witness was examined and cross-examined as to his understanding of the map and his familiarity with the premises it represented, before the evidence was received. The fact that he was permitted to testify upon this point was an implied finding of his competency. Squires v. O'Connell, 91 Vt. 35, 43, 99 A. 268. This ruling is not revisable unless it appears from the evidence to be erroneous, or founded upon an error in law. Shields et al. v. Vermont Mutual Fire Insurance Co., supra, 102 Vt. at pages 247, 248, 147 A. 352. An examination of the transcript discloses evidence which supports the finding, and the defendant's exception to the admission, of the testimony is not sustained. Raymond v. Sheldon's Estate, 92 Vt. 396, 400, 104 A. 106; Lincoln v. C. V. Ry. Co., 82 Vt. 187, 192, 72 A. 821, 137 A. S. R. 998; Place v. Gr. T. Ry. Co., 80 Vt. 196, 204, 67 A. 545. The cases cited above have to do with the qualification of expert witnesses, but the principle is the same where the competency of a lay witness is in issue. Andrews v. Aldrich, supra.

Several exceptions were taken to the argument of plaintiff's counsel, all of them involving essentially the same question. So far as appears by the transcript, all the objectionable statements were made following and connected with one another in the argument. Counsel stated that it was the duty of the plaintiff to turn to the right-hand side of Railroad Street when he reached the junction of Hastings and Railroad Streets, and in explanation of this...