A. A. Bianchi v. C. F. Millar

• Decision Date: 05 October 1920
• Citation: 111 A. 524,94 Vt. 378
• Parties: A. A. BIANCHI v. C. F. MILLAR
• Court: Vermont Supreme Court

111 A. 524

94 Vt. 378

A. A. BIANCHI v. C. F. MILLAR

Supreme Court of Vermont

October 5, 1920

February Term, 1920.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1918, Washington County, Stanton J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Richard A. Hoar for the plaintiff.

J Ward Carver for the defendant.

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

OPINION

TAYLOR

The action is tort for damages to plaintiff's automobile in a collision with the defendant's automobile on Washington Street in the city of Barre. There was a trial by jury with verdict and judgment for the defendant.

Washington Street runs in a southerly direction and up a grade in the vicinity where the accident occurred. The time was Sunday evening about nine o'clock. The defendant, accompanied by his wife, was on his way home from South Main Street in his automobile. His route took him easterly over Church to Washington Street, thence up Washington Street a short distance to Academy Street, thence again easterly along the latter street. He had turned onto Washington Street, and was proceeding up the grade toward Academy Street behind a team. The plaintiff was driving his automobile down Washington Street. The track of the electric railroad at the place of the accident is nearly in the center of the street. The street was lighted, and there were headlights on both cars. The speed of the automobiles, their precise location at the time of the collision with reference to the center of the street and the junction of Washington and Academy Streets, as well as various other circumstances connected with the happening of the accident, were in dispute. The evidence of each tended to show that the collision occurred through the fault of the other.

Against the objection that a sufficient foundation had not been laid, Mrs. Millar was permitted to testify on behalf of the defendant that she had some idea as to the rate of speed of the plaintiff's car at the time of the collision, and that she would say it was thirty miles an hour, to which the plaintiff excepted. The claim now made is that the witness was not qualified to express an opinion, in view of the fact that it was dark and the car, with its lights shining in her face, was coming directly toward her. This is not a sufficient basis of reversible error. It is not claimed, nor could it well be in view of her testimony, that Mrs. Millar was not as well qualified as any one could be to judge of the speed in like circumstances. The opportunity to judge of the speed of the car by comparison with stationary objects would be impaired and may have been wholly lacking; but there would still be the element of time required to cover a given distance, the force of impact with the defendant's car, which the evidence tended to show had been brought to a standstill, and the speed at which the car passed, to say nothing of the distance covered after the collision before it came to a stop. The objection goes to the weight, rather than the admissibility of the evidence. Moreover, the witness had already given the same estimate of speed in an answer that was not excepted to.

The plaintiff excepted to the exclusion of a question asked the defendant in cross-examination respecting insurance against liability in case of an accident. In substance the offer was to show that if there was a judgment against the defendant in this action, the Insurance Company would have it to pay; but that, if the plaintiff was insured and he recovered from the defendant, he would not be entitled to any insurance. The court having ruled against the plaintiff, the defendant was asked if he had his insurance policy with him, which was excluded under exception. Thereupon the defendant was allowed an exception to the asking of the question, and the court instructed the jury to disregard anything in relation to insurance--that they had nothing to do with that. The plaintiff was allowed an exception to the court's cautionary statement. It is argued that these exceptions present reversible error.

Manifestly whether either party carried liability insurance was wholly irrelevant to any issue in the case. It is contended that the defendant "opened the door" by certain answers when on the stand as a witness called by the plaintiff. Our attention is directed to certain pages of the transcript where it appears that the plaintiff was attempting to show by the defendant the allegations of the declaration in a suit brought by the latter against the former on account of the same accident. In this connection, the...