Bennett. v. Bennett

• Decision Date: 06 April 1943
• Citation: 31 A.2d 374
• Parties: BENNETT. v. BENNETT, DRAKE v. SAME.
• Court: New Hampshire Supreme Court

31 A.2d 374

BENNETT.

v.BENNETT,

DRAKE

v.SAME.

Supreme Court of New Hampshire.

April 6, 1943.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

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

Actions of the cease for negligence by Marion Bennett and Winnie B. Drake against Austin E. Bennett for injuries sustained in an automobile collision. Verdicts for the defendants and the case was transferred on the plaintiffs' exceptions.

Judgments on the verdicts.

Actions of the Case, for negligence alleged to have caused a collision near Union on January 17, 1941, between an automobile driven by the defendant and a beach wagon driven by one Ballentine. Trial by jury, with a view; verdicts for the defendant. The plaintiffs excepted to the admission and exclusion of evidence, to the submission of the question of contributory negligence, to portions of the charge given, and to the denial of numerous requests for instructions. Transferred by Johnston, J. The essential facts appear in the opinion.

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

Murchie & Murchie, of Concord (Alexander Murchie, of Concord, orally), for defendant.

PAGE, Justice.

The plaintiff Bennett drove her husband's car from Freedom to Durham on the afternoon of the accident, taking the plaintiff Drake as her guest. At Durham she took in her son, the defendant, and he drove northward in the direction of Freedom. At about 5:30 a beach wagon driven south by Ballentine skidded over into the northbound lane ahead of the defendant, and there was a serious collision in that lane, the right front corner of the Bennett car hitting the right front door of the Ballentine car, which buried its nose in the snow bank on the easterly side of the road.

There was evidence showing ice on the highway, but the extent to which the surface was slippery was in some dispute. The defendant was driving between forty and forty-five miles an hour. Brake marks were found about twenty-five and a half feet long, indicating an attempt by the defendant to stop, but there was no indication that his car skidded at all when he applied the brakes. His car never left its own lane. Ballentine did not apply his brakes, but skidded on a slightly rising grade.

The distance of the Ballentine car from the Bennett car when the former skidded was in dispute. According to Ballentine it was between three and four hundred feet. Ms. Drake testified that the distance was much less, and that the accident happened “quite suddenly” after she saw the beach wagon come into the north-bound lane. The defendant testified that he applied the brakes as soon as the beach wagon came over into his lane, which with the short brake-marks warranted a finding that the distance was short.

State Trooper Swift arrived at the scene of the collision from the north nearly an hour and a half after the accident, but before the cars had been moved. Besides testifying as to the position of the cars and the measurements of the brake-marks, he was permitted, subject to exception, to say that the surface was not slippery; that there had been no rain since 5:30 (when the accident happened, and when it was claimed by the plaintiffs that the weather was misty and freezing); that he drove much of the distance of fifteen miles at fifty miles an hour; that he had no difficulty as to skidding.

The plaintiffs' objections to this testimony were based upon alleged remoteness in time and place. As to the time, the relation of the surface conditions of 6:34 and 6:55 (the period when Swift was approaching the scene) to 5:30 (the time of the collision) is not necessarily remote in view of Swift's testimony that it was not misting at 5:30. As to place, the fact that the defendant drove from the south to the point of accident, while Swift came from the north, is not conclusive, but only matter for the trial court to consider in determining whether the evidence was too remote to aid the jury. We cannot say as matter of law that it was too remote, and are unable to disturb the trial court's exercise of discretion. Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 239, 17 A.2d 529. The court's discretion was not abused merely because this witness was not permitted to testify that “road conditions change rather rapidly”. The exclusion was on the ground that the witness “couldn't know any more about that than the jurors.” It does not conclusively appear that the witness could help the jurors in this respect, since, as the court intimated, it is common knowledge that road conditions do sometimes change rather rapidly. It does not follow, however, that they did in this instance, and the plaintiffs made no attempt to show that such was the case other than to let the jurors speculate on the basis of the common knowledge which the testimony sought could do no more than confirm.

Police Officer Wade of Union arrived at the scene of the accident soon after it happened. He said that it had been misting, and was misting, freezing as it fell. Plaintiffs' attorney then asked Wade whether it was slippery or icy. The court suggested that the question be rephrased. The witness accordingly was asked to describe the condition of the road, upon which he said that it was icy. “Was it slippery?” This was excluded, without exception, as leading. “What else beside being icy ***?” “It had been sanded, and of course with the rain coming down *** it was glazed over somewhat again.” “What else do you remember about the condition of the road ***?” “I can't say any more than that it was an icy highway.” “Was it slippery?” Upon defendant's objection, counsel for the plaintiffs argued that the witness's recollection had been exhausted and that a leading question was necessary to refresh his memory. The question was excluded and the plaintiffs excepted. This was the third time that the plaintiffs' counsel had used the suggestive word “slippery.” The court could properly conclude that it was not the witness's want of memory that was the cause of his failure to say categorically that the road was slippery. The trial justice was under no compulsion to exercise his discretion to permit the question. Huckins v. People's M. F. Ins. Company, 31 N.H. 238, 247.

Ballentine was allowed, subject to the plaintiffs' exception, to testify that after the accident he consulted an attorney relative to his legal rights. He was not asked what the attorney told him, but testified without further objection that he had brought no suit. The first question did not call for the opinion of the attorney as to Ballentine's legal rights. As far as appears from the record, the plaintiffs' sole objection to the question was that it did. If the opinion did get in indirectly and by implication, it was because the plaintiff made no objection to the second question concerning lack of suit. No question therefore is now presented.

The plaintiff Drake, after testimony that “in the distance” she saw a car sliding across the road onto the lane in which she was traveling, was asked, “And what happened after that?” She replied, “Well, my thought was, ‘I hope we get by”’. Upon objection, the answer was stricken out and the plaintiffs excepted. The answer was wholly irresponsive, and it was proper to strike it out. Spear v. Richardson, 37 N.H. 23, 30. The only relevancy suggested for the answer, in any event, was that it showed that Mrs. Drake's view of the Ballentine car was not instantaneous with the crash. Entirely aside from the fact that a lapse of time might be shown otherwise, it had already appeared that Mrs. Drake saw the beach wagon “at a distance.” Accordingly the trial justice said, in making his ruling, “I agree the collision was not instantaneous. Now what you are really trying to do is to measure the distance by this method. It would seem to me a poor way of doing it.” We agree. The “hope” that a collision would not take place suggests that the chance of getting by the Ballentine car appeared at least doubtful to Mrs. Drake, thus being of no benefit to her if admitted, since it tended to shorten the “distance” to at least comparative nearness. Moreover, the witness was not deprived of the opportunity to testify as to the distance in objective, rather than subjective, ways. While she was poor at estimating distances in terms of feet, it appeared in a passage from her deposition, used in her examination, that she described the distance as more than a certain space that was agreed to be thirty feet, how much more she was unable to say; while in her testimony before the jury she described it as the distance she sat from the street -a distance that the jury were competent to estimate for themselves. The ruling was correct technically, and it resulted in no possible prejudice to the plaintiffs.

The plaintiffs claim that the trial was rendered unfair by the methods of cross examination permitted to the defendant's counsel while Mrs. Drake was a witness. She was faced with a statement purported to have been made by her two months and a half after the accident, and ending with the words, “Have you read the above page-and-a-half statement and is it true?” She admitted that under this she wrote “Yes” and signed her name, but denied that she had more than glanced at it, nor did she recall having made certain statements in it, as that she did not notice the road conditions, that the defendant drove carefully and not too fast, and that she felt that “the sole cause of the accident was the Ballentine car cutting across the road in front of Austin.” The admissions not having been proved by her memory, the attempt to contradict her by this statement came to nothing unless the jury, as they might, chose to believe that she had signed the statement after having read it and that she meant precisely what she admitted having written. They were equally at liberty to disregard the supposed admissions if they believed her testimony that she wrote as sh...