Asa Tyrrell v. Moses Goslant

• Decision Date: 13 January 1919
• Parties: ASA TYRRELL v. MOSES GOSLANT
• Court: Vermont Supreme Court

106 A. 585

93 Vt. 63

ASA TYRRELL v. MOSES GOSLANT

Supreme Court of Vermont

January 13, 1919

November Term, 1918.

ACTION OF TORT for negligence in operating an automobile. Plea, the general issue. Trial by jury at the March Term, 1918 Washington County, Fish, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

John W. Gordon for the plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR,and MILES, JJ.

OPINION

WATSON

The plaintiff seeks to recover for injuries to his person and his automobile, caused by the alleged negligence of the defendant.

It appeared that the plaintiff, together with five young men left Barre in his automobile about 8 o'clock in the evening of July 28, 1917, on a trip to Joe's Pond in the town of Cabot, to attend a dance; that the defendant, who owns a farm on the main highway between Plainfield village and Marshfield village, the highway over which plaintiff and party were traveling at the time in question, took his automobile and with his family and friends went to the latter village to attend a band concert, but as there was no concert that evening, he started to return and was within about one mile of his home when a collision took place between his automobile and the plaintiff's automobile, going in opposite directions. This was about 8.30 o'clock. The traveled portion of the highway at the place of collision was, according to plaintiff's evidence, 15 feet wide, and according to defendant's evidence, 16 1/2 feet wide, and by all the evidence the road along there was good.

The plaintiff's evidence tended to show that at the time of the collision he was proceeding on his right-hand side of the center of the highway, at a rate of speed from fifteen to eighteen miles an hour. On the other hand, the defendant's evidence tended to show that the speed at which plaintiff's car was then running was from thirty to forty miles an hour.

The plaintiff testified in his own behalf. In cross-examination he was asked if the boys with him in the automobile on that trip sang any on the way and, subject to exception as immaterial, answered that he would not say they did not sing. The same question was saved in connection with the testimony of one of the young men in the party, who testified that they were singing, off and on, going over. But three of the young men testified without objection that their party were singing more or less on the way over, and one of them said "had been singing all the way up." This evidence was not disputed. The fact of such singing being so shown by evidence received without objection, even though the rulings were erroneous (which we do not decide) they do not appear to have been prejudicial.

The plaintiff testified in cross-examination that he saw the defendant the next Monday after the accident. He was then asked whether on that Monday the defendant demanded damages of him and that he repair defendant's car? Ojection being made that such evidence would be a declaration by defendant in his own interest, and exception saved, the question was withdrawn before it was ruled either way. We have no reason to believe that prejudice resulted therefrom.

Dewey Stone, one of the plaintiff's party, testified in cross-examination, without objection, that they ran by quite a number of cars when going on that trip; that when they came to a car they went by it. He was then asked if he knew how many cars they passed from the time they left Barre to the time they got up there, and, against exception as immaterial, answered that he did not. Against exception the witness was asked if they passed a good many cars, and answered that they passed some. These answers given under exception, add nothing to what the witness previously stated without objection, and the exceptions are of no avail.

Elbridge Gilman, a civil engineer called by the defendant, testified that some three days after the accident, at defendant's request, he made a survey and plan of a portion of the highway in question, particularly between the residence of C H. Collins and the "Joe barn," which includes the point where the collision in question occurred; which plan is marked in this case as "Exhibit 1"; that the defendant was with him on the highway when the survey was made, and pointed out some things which were put in the plan, including the place in the highway where his axle dropped and where his car stopped at the time of the collision; that at that point there was a place ploughed or scooped out of the hard roadbed, probably three inches deep and twelve or fourteen inches across. This point is marked on the plan, which says above it, "Cars met point," with an arrow pointing down. From the place of the accident, for a distance of twenty-seven rods, going northerly toward Marshfield, the road is ascending. At the top of the hill the "Joe barn" is located. From the same place for a distance of sixty-nine rods, going southerly toward Plainfield, the road is also ascending, and at the top of that hill the C. H. Collins residence is located. Between these summits the highway is practically straight, and a person in the highway at the top of either, can see clearly the highway at the top of the other. At the point where the cars met, the road is nearly on a level. The witness testified that at the time of making the survey the defendant pointed out to him what defendant called the tracks of an automobile, that went across or crosswise of the road, which the witness followed. He was then asked if the defendant pointed them out as the tracks of any particular automobile and, subject to exception on the ground that the question called for what defendant said, he was permitted to answer categorically, and did, "Yes." The witness further testified that the tracks so pointed out ran from the place scooped out in the highway, across the road to a point five rods distant, up on a bank, at which latter place the grass had been trodden down, and he found there broken glass a plenty, and two cigarette boxes; that the latter place was pointed out to him by the defendant as the place where he claimed the automobile tipped over. The witness was not present at the accident and had no personal knowledge concerning it. ...