Barlow v. Verrill

• Citation: 183 A. 857
• Parties: BARLOW v. VERRILL et al.
• Decision Date: 03 March 1936
• Court: Supreme Court of New Hampshire

183 A. 857

BARLOW

v. VERRILL et al.

Supreme Court of New Hampshire. Hillsborough.

March 3, 1936.

Exceptions from Superior Court, Hillsborough County; Scammon, Judge.

Case by Morrill Barlow against Harold E. Verrill and another, as Caron's Furniture Exchange. Verdict for the plaintiff, and the defendants bring exceptions.

Judgment on the verdict.

Case to recover damages for personal injuries caused to the plaintiff by an automobile belonging to the defendants and alleged to have resulted from the negligent manner in which the car was parked upon a highway. Trial by jury, with a verdict for the plaintiff.

The defendants' motions for a nonsuit and a directed verdict were denied, and the defendants excepted. All other exceptions taken by the defendants were waived. The case comes here upon a bill of exceptions which was allowed by Scammon, J. The facts are stated in the opinion.

John B. Cavanaugh, Doyle & Doyle, John J. O'Reilly, Jr., and Paul J. Doyle, all of Manchester, for plaintiff.

Ivory C. Eaton, of Nashua, for defendants.

BRANCH, Justice.

The plaintiff owns and operates a gasoline station located upon the Daniel Webster Highway in the town of Bedford. Approaching from the south, the road descends a considerable hill, and the plaintiff's station stands at the foot of the grade. Upon February 2, 1932, the defendant Verrill was operating an automobile belonging to the defendant partnership upon the abovementioned highway, and had with him as a passenger an elderly man named Emile Caron who did not "know anything about driving an automobile" and did not "know how to start or stop them." At some point south of the plaintiff's filling station the car stopped because, as Verrill supposed, it had run out of gasoline. The evidence as to the exact spot where this occurred was conflicting, but it all tended to show that it happened at a considerable distance south of the top of the hill above the plaintiff's premises. Verrill thereupon decided to "walk to Mr. Barlow's filling station and get gas," leaving the car parked beside the road with Caron either in or near it.

Thereafter a witness named Lamarie, who was also walking to the plaintiff's filing station to purchase cigarettes, passed the defendants' car and testified that he saw a man standing beside it; that when he "got about to the center of the hill" the same car passed him with the engine running; that the man in the car was the one he had seen standing beside it; that after it passed him, the car "drove into Barlow's" but finally stopped upon the opposite side of the highway.

From other testimony in the case it appeared that the car came down the hill at a considerable speed, with Caron at the wheel, turned into the plaintiff's filling station and struck the plaintiff, who was then engaged in filling a can with gasoline, then turned in the opposite direction, and was finally stopped by a large boulder on the opposite side of the road.

The story told by Caron on the witness stand was that the driver of an unidentified car volunteered to give the defendants' car a push and persuaded him to take the wheel; that the defendants' car was then pushed to the top of the hill, after which it gained speed and he was unable to control it.

The defendants' argument is that the plaintiff failed to make out a case because it was not shown either (1) that the defendant Verrill was negligent in leaving the car as he did, or (2) that such negligence, if proved, caused the accident.

The witness Lamarie testified positively that when the defendants' car passed him on the hill the motor was running. Caron testified with equal emphasis that he did not turn the ignition key or put the car into gear after Verrill left. An expert witness, called by the plaintiff, testified that "if the car gets running the ignition switch must have been on and if it was moving on the highway it must have been in gear." From this testimony it is a permissible inference that when the defendant Verrill left the car, the ignition was turned on and the car was in gear. The possibility that a car in this condition might be moved or started by unauthorized persons is sufficiently obvious; and in passing upon "the crucial question of whether it was properly parked," (Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868, 869) the jury may well have found that due care required that precautions be taken against the happening of such an occurrence. Tullgren v. Company, 82 N.H. 268, 276, 133 A. 4, 46 A.L.R. 380. Verrill himself testified that "that would not have been a proper way to leave the car," and he might properly be found negligent in leaving it in such condition.

This brings us to a consideration of the defendants' second proposition, namely, that even if Verrill were found to be negligent in leaving the car as he did, there was no evidence that such negligence contributed to cause the accident. More specifically, the argument is that there was no evidence to show what caused the car to start unless Caron's story of the officious motorist be accepted as true. The testimony of the witness Lamarie that the motor was running when the car passed him would clearly justify a finding that it was then proceeding under its own power, and the plaintiff argues as follows: "It seems that in view of the testimony it was within the province of the jury to find that the defendant left the automobile in gear and with the ignition on, and that the person left in charge unknowingly stepped on the starter and thus the car got started."

It is unnecessary to decide whether the facts above stated would justify all these inferences, since there is definite evidence that some such occurrence actually took place. The witness Joseph Rochette testified that immediately after the accident he asked Mr. Caron how it happened and "the first statement he made to me was that he got into the car and the car started and he didn't know how to stop the car. * * * It started and he didn't know what made it start." Although this testimony was obviously hearsay, it was admitted without objection by the defendant and without any suggestion of limitation as to its use. Caron had not at that time testified and it cannot, therefore, be assumed that it was admitted for the purpose of-contradicting him. In fact, it would appear that the defendant was quite willing that Rochette's testimony should be received, because he also testified that Caron subsequently told the story of the passing motorist who pushed him to the top of the hill.

Under these circumstances, the jury were entitled to give weight to Caron's extrajudicial statements in support of any finding which they logically tended to prove.

"The initiative in excluding improper evidence is left entirely to the opponent,—so far, as least, as concerns his right to appeal on that ground to another tribunal. The judge may of his own motion, deal with offered evidence; but for all subsequent purposes it must appear that the opponent invoked some rule of evidence." 1 Wig.Ev. § 18. Hence follows the general rule oft repeated in the decisions of this court in the following terms: "Ordinarily, objections to evidence, unless made when it is first introduced and its bearing understood, will be considered to have been waived." Story v. Railroad, 70 N.H. 364, 379, 48 A. 288, 294, and cases cited; Hening, N.H.Dig. 681, 682, 1239, 1240. As a corollary of this rule, it necessarily follows that relevant evidence received without objection may properly be considered by the trier of fact, although it would have been excluded if objection...