Bennett v. Larose

• Decision Date: 07 December 1926
• Citation: 136 A. 254
• Parties: BENNETT v. LAROSE.
• Court: New Hampshire Supreme Court

136 A. 254

BENNETT

v. LAROSE.

Supreme Court of New Hampshire, Strafford.

Dec. 7, 1926.

Transferred from Superior Court, Strafford County; Young, Judge.

Action for negligence by Bessie M. Bennett against Romeo I. Larose. Case transferred from the trial term on plaintiff's exceptions to the denial of his motion to set aside verdict and for new trial. Exceptions overruled.

Case, for negligence. Trial by jury, and verdict for the defendant. Alter verdict, and before judgment, the plaintiff moved to set aside the verdict and for a new trial: (1) Because it was against the law and the charge; (2) because it was against all the evidence; and (3) because it was against the weight of the evidence. Transferred by Young, J., on the plaintiff's exception to the denial of her motion. The facts appear in the opinion.

Sewall & Waldron and Arthur E. Sewall, all of Portsmouth, for plaintiff.

George R. Scammon, of Exeter, for defendant.

SNOW, J. A motion to set aside a verdict "because it is against the law" raises no question of law which has not previously been saved by exception. Smith v. Sargent, 78 N. H. 152, 159, 97 A. 872; Head & Dowst Co. v. Breeders' Club, 75 N. H. 449, 450, 75 A. 982; Nadeau v. Sawyer, 73 N. H. 70, 72, 59 A. 369; Pitman v. Mauran, 69 N. H. 230, 40 A. 392. The charge is not reported, and no exceptions were taken prior to the verdict.

The exception to the denial of her motion to set aside the verdict on the ground that it is against all the evidence is predicated upon the premises: (1) That there was conclusive evidence of the defendant's negligence; and (2) that there was no evidence of the plaintiff's negligence. The plaintiff, in argument, proceeds on the erroneous assumption that her exception raises the same question of law as would have been presented by an exception to the denial of a motion for a directed verdict made at the close of the evidence. It is a sufficient answer to the plaintiff's contention that upon this assumption she could not prevail. As both premises would be essential to support an exception to the denial of a motion for a directed verdict, she would fail, since the record clearly discloses evidence from which the plaintiff's negligence might be found.

The defendant's automobile collided with the plaintiff, a pedestrian, while both were traveling westerly upon the highway leading from Kittery, Me., to the Portsmouth memorial bridge. The place of the collision is on the main route of automobile travel between Portland and Portsmouth. The accident occurred at 7:30 on the evening of September 30, 1923, at a very dark spot. The portion of the highway usually traversed by vehicles was surfaced with macadam or tarvia to a width of 17 or 18 feet. To the right of the macadam, as the parties were traveling, was an abandoned street railway track which had been partially filled in with dirt, and, although a little rough, was commonly used as a pathway by pedestrians. There was also a narrow dirt path upon the opposite side of the highway which was likewise used by foot travelers. The defendant's evidence tended to show that he was proceeding upon the macadam roadway at a speed of between 15 and 17 miles per hour; that his vision of the roadbed for a distance of about 250 feet was cut off by the combined effect of the lights of an approaching car and of the lights of a car approaching from the rear reflected by his windshield, both of which were blinding; that he first saw the plaintiff when within two or three feet of her, and too late to avoid a collision; that the plaintiff, with her back turned to the traffic, was traveling upon the macadam at a distance of three or four feet from the nearest rail of the track and in the line of the defendant's right mud guard. The plaintiff's evidence tended to show that she was traveling on the abandoned railway track, and was otherwise in direct conflict with the defendant's evidence. The plaintiff knew of the use by pedestrians of the abandoned railway.

If there was competent evidence that the accident happened in the manner the defendant contends, it must be conceded that such evidence would support a finding of the jury that the plaintiff was negligent. The plaintiff's position, however, is that there was no competent evidence that she was traveling on the macadam roadway. The only evidence that she was so traveling was the testimony of the defendant and his fellow passenger. The plaintiff's contention is that it conclusively appears from the further testimony of these witnesses that they had an insufficient opportunity to observe and determine her situation. It is argued that, as they were admittedly traveling 17 miles per hour, or 21 feet per second, and first saw the plaintiff when within two or three feet of her, mathematical calculation shows that the period of their observation was limited to one-seventh of a second; that it is a matter of common knowledge that even trained observers do not attempt to clock time within a fifth of a second. It is a sufficient answer to this contention that, if such a limitation upon the exercise of the human vision were a fact, and if such fact were a matter of such established common knowledge that this court could take cognizance of it, it would not help the plaintiff. The testimony of the witnesses that they saw the plaintiff traveling on the macadam roadway is entitled to as much credit at least as are their estimates of speed and distance. The jury may well have found that they erred in one or both of such estimates, in which case the plaintiff's mathematical deduction fails, and, with it, falls her essential premise.

But the plaintiff's exception to the denial of her motion to set aside the verdict as against "all the evidence" (as distinguished from the "weight of the evidence") must be overruled because of the well-settled rule of procedure in this jurisdiction that an objection to the want of evidence upon a vital issue cannot be first raised by a motion to set aside a verdict.

The question whether there is any evidence to sustain a verdict is a question of law (Coles v. Railroad, 74 N. H. 425, 426, 68 A. 868), as is also the question whether, upon the evidence, a given conclusion can be reached (Manchester Dairy System v. Hayward, 82 N. H. 193, 205, 132 A. 12). But these questions of law are appropriately raised by exceptions to the granting or denial of motions for a nonsuit or for a directed verdict, or by exceptions to the evidence or to the charge. Pitman v. Mauran, 69 N. H. 230, 40 A. 392. If objection is not made and exception taken before the issue is submitted, the presumption that there is evidence sufficient to support a verdict prevails, and the objection is waived.

Such has been the holding in cases where it was claimed that there was no evidence in support of a vital issue. Haydock v. Salvage, 67 N. H. 598, 599, 38 A. 207; Bickford v. Bickford, 74 N. H. 448, 450, 69 A. 579; Tilton v. Tilton, 74 N. H. 602, 603, 68 A. 867; Barker v. Company, 78 N. H. 571, 572, 103 A, 757, L. R. A. 709; Patten v. Patten, 80 N. H. 590, 115 A. 558; Spaulding v. Mayo, 81 N. H. 88, 122 A. 899. Likewise in cases where the motion was predicated upon the insufficiency of the evidence to sustain the verdict. Elwell v. Roper, 72 N. H. 585, 587, 58 A. 507; Gendron v. St. Pierre, 73 N. H. 419, 424, 62 A. 966; Farnham v. Anderson, 74 N. H. 405, 68 A. 459; Coles v. Railroad, supra; Head & Dowst Co. v. Breeders' Club, 75 N. H. 449, 450, 75 A. 982; Moynihan v. Brennan, 77 N. H. 273, 274, 90 A. 964; Cook v. Sargent, 78 N. H. 25, 26, 95 A. 674; Morrison v. Noone, 78 N. H. 338, 340, 100 A. 45; Carpenter v. Carpenter, 78 N. H. 440, 444, 101 A. 628; Derosier v. Company, 82 N. H.——, 134 A. 719.

The rule is based upon the sound reason that justice requires that the question should be raised while, theoretically at least, the deficiency may yet be supplied. Elwell v. Roper, supra; Head & Dowst Co. v. Breeders' Club, supra; Smith & Sargent v. Company, 78 N. H. 152, 159, 97 A. 872; Derosier v. Company, supra. It would be inequitable to permit a party to lie by until after the adverse party had lost all opportunity to supply the deficiency and then for the first time to raise the question that his opponent had submitted no evidence, or no sufficient evidence. Baldwin v. Wentworth, 67 N. H. 408, 409, 36 A. 365. We are not here concerned with a motion addressed to the trial court for a rehearing or a new trial because of accident, mistake or misfortune. Gendron v. St. Pierre, 73 N. H. 419, 424, 62 A. 966; P. L. c. 342, § 1. Nor does the rule affect the power of the trial Justice, upon his own initiative, to revise his earlier rulings. State v. Owen, 80 N. H. 426, 427, 117 A. 814.

The application of the rule is, however, limited to the reason for it. Therefore, where the deficiency is incapable of being supplied, the rule ceases to apply. Smith & Sargent v. Company, supra; Derosier v. Company, supra. So, also, when a party has seasonably protected his rights before verdict, the presumption of waiver is negative, and he may raise the question of the want of evidence by a later motion to set aside the verdict. Ingerson v. Railway, 79 N. H. 154, 159, 106 A. 488; McConnell v. Lamontagne, 82 N. H.——, 134 A. 718.

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