Bartis v. Warrington

• Decision Date: 03 June 1941
• Docket Number: No. 3252.,3252.
• Parties: BARTIS v. WARRINGTON.
• Court: New Hampshire Supreme Court

20 A.2d 642

BARTIS

v. WARRINGTON.

No. 3252.

Supreme Court of New Hampshire. Hillsborough.

June 3, 1941.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Action of case by Agnes Bartis against Percy Warrington, for negligence in the driving of an automobile, resulting in personal injury to the plaintiff. Verdict for the defendant, and the case was transferred on three exceptions taken by the plaintiff.

Judgment on the verdict.

Action of case, for negligence in the driving of an automobile, resulting in personal injury to the plaintiff. Trial by jury, with a view, resulted in a verdict for the defendant. The case is transferred by Lorimer, J., on three exceptions taken by the plaintiff. These exceptions, together with the facts pertinent thereto, appear in the opinion.

Ivory C. Eaton and Leonard G. Velishka, both of Nashua, for plaintiff.

Paul E. Nourie, of Manchester, for defendant.

BURQUE, Justice.

I. The first exception is to a ruling of the court in excluding the use of a deposition offered by the plaintiff to have a witness for the plaintiff refresh his memory as to the speed of the defendant's car at the time of the accident. The witness testified that defendant's speed was from fifteen to twenty miles per hour. Plaintiff's counsel then undertook to have the witness refresh his memory through the use of a deposition previously given, wherein he, the witness, had stated the car came "flashing" across the street. Upon objection the court excluded the use of the deposition for the purpose for which it was offered. The ruling was correct. The witness testified positively as to the speed both in direct and cross examination. The deposition apparently could not refresh his memory. Memoranda and other documents are used not to refresh one's memory when one has no memory as to past events, but as substantive evidence of facts stated therein when one has made a memorandum of an event at the time of its occurrence. Lawrence v. Farwell, 86 N.H. 59, 63, 163 A. 115, State v. Iacavone, 85 N.H. 207, 209, 155 A. 701, and Graves v. Boston & M. Railroad, 84 N.H. 225, 227, 149 A. 70, are all to the same effect. Precourt v. Driscoll, 85 N.H. 280, 281, 157 A. 525, 78 A.L.R. 874, is the same in substance, as appears in the statement of the law discussed. But what is really decided in that case is that a deposition need not be put in evidence before inquiry is made of the plaintiff as to whether he had made a statement in the deposition which differs from the testimony given in court. The attempt here was to contradict the plaintiff on cross-examination. The effect resulting from the use of the deposition in this instance would not have been to refresh the witness' memory but to contradict her positive statement on the witness stand.

In this case it appears the deposition was taken September 13 of the same year the case was tried, to wit, 1940. The accident occurred November 27, 1937. The witness testified from memory in both instances. The fact that he made a statement in his deposition which turns out to be different from the one made in court does not make the deposition admissible for refreshing his memory but makes it admissible for contradiction only. If the plaintiff was surprised by the witness' testimony and her attorney wished to have the privilege of cross-examining the witness on the point involved, such a position should have been taken then, and an appeal made to the Presiding Justice on that ground. But such is not the fact and no such question is presented to us.

II. The second exception is to the following instruction to the jury: "* * * the plaintiff's claim is that she was injured while on the crosswalk at this intersection. The defendant's is that the accident * * * happened at a point some forty or fifty, or even more, feet to the north. If * * * the plaintiff was not injured at this intersection, but * * * was injured at a point some forty or fifty feet * * * north of it, then the defendant is not liable, because if the accident happened there * * * the defendant at that point was exercising due care * * *".

There is no error in this, although it was unnecessary to give as a reason for the first statement that if the accident happened north of the intersection the plainiff could not recover, because "* * * the defendant at that point was exercising due care". The later unqualified statement in the charge, to wit, "If the accident happened at a point forty or fifty feet north of the intersection, the plaintiff cannot recover", stated the law correctly in the instant case. The plaintiff testified positively and unequivocally that the accident happened at the intersection. She describes her actions in full, to the effect that when she reached the intersection she waited until the green light came, that when she was crossing, the light was green and just as she got towards the middle it came out yellow, and then the accident happened. She produced two witnesses to substantiate her claim, and tried her case entirely on that theory. She is bound by her testimony. She made no attempt to resume the witness stand after the defendant, his sister, and five other witnesses testified the...