Bullard v. McCarthy

• Decision Date: 02 November 1937
• Citation: 195 A. 355
• Parties: BULLARD v. MCCARTHY (two cases).
• Court: New Hampshire Supreme Court

195 A. 355

BULLARD

v. MCCARTHY (two cases).

Supreme Court of New Hampshire. Hillsborough.

Nov. 2, 1937.

As Corrected Dec. 7, 1937.

[Copyright material omitted.]

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

Actions by Robert M. Bullard, a minor, by his father and next friend, and Maurice O. Bullard, respectively, against Edward McCarthy. Verdicts for plaintiffs, and defendant brings exceptions.

Judgment on the verdict for minor plaintiff, and new trial in the action of Maurice O. Bullard.

Two actions of case, for negligence, tried together by jury with verdicts for both plaintiffs. The first action is brought to recover for personal injuries alleged to have been sustained by Robert M. Bullard, a child, on April 21, 1935, when he was struck by the defendant's automobile. The other action is brought to recover for the loss occasioned the child's father by reason of the accident.

The exceptions on which the defendant relies relate to the admission and exclusion of evidence, to the argument of plaintiffs' counsel, to the charge, and to the refusal of the court to grant certain requests for instructions. Exceptions to the denial of motions for nonsuits and directed verdicts are waived.

At the time of the accident Robert M. Bullard who was only four years old, had entered, or was about to enter, the driveway of his grandfather's home, known as the Cadorette farm, located on the south side of the highway leading from Milford to Nashua. His father and mother were spending the afternoon there, and he was returning alone on foot from his aunt's residence, which was situated on the north side of the road opposite Round pond and about 600 feet west of the Cadorette farm. The defendant, driving a Buick car, was proceeding east toward Nashua. His father and mother were riding with him. Further facts are stated in the opinion.

The defendant's bill of exceptions was allowed by Burque, J.

Ivory C. Eaton and Gerald F. Cobleigh, both of Nashua (Mr. Eaton orally), for plaintiffs. Hamblett & Hamblett and Robert F. Griffith, all of Nashua (Mr. Griffith orally), for defendant.

MARBLE, Justice.

Alfred J. Houghton, one of the plaintiffs' witnesses, testified that he was driving west toward Milford at the time of the accident and had just passed a Ford car when he saw the defendant's car approaching from the west. He described the accident as follows: "I think, probably, we went 100 feet after I passed the car and I noticed a little boy coming down the side of the road. * * * He walked down the side of the road, to opposite the driveway, and he stopped and looked both ways, to see if he had plenty of time to cross the road; * * * and he walked across the road, and I saw the car was still coming, it didn't slow down, and he got across the road, and into the driveway, at least fifteen feet, and he got hit with the bumper of the Buick, and the left wheel went over him."

In reply to the question, "Did you slow down when you passed the Ford car?" the witness said: "No, sir; not right when I passed the Ford car, but I did slow down when I saw the little boy going across the road, as anybody should." Defendant's counsel moved that "the last part of the answer be stricken out as not responsive." The motion was denied and the defendant excepted.

A witness's answer does not constitute reversible error merely because it happens to contain unsolicited comment or information. Pope v. Boston Railroad, 79 N.H. 52, 54, 104 A. 403; Fuller v. Maine Railroad, 78 N.H. 366, 369, 100 A. 546. Counsel did not claim at the trial that the phrase objected to offended in any material way. He now contends, however, that "the entire testimony of this witness was characterized by persistent and flagrant attempts to insert prejudicial opinions into the record," and points to this particular answer as an instance of such an attempt. It does not appear that any suggestion of the sort was made to the presiding justice, and "It was well settled that this court will not consider grounds of exceptions not specified or called to the court's attention at the trial." Plante v. Manchester, 83 N.H. 57, 59, 138 A. 314, 315.

The defendant requested the court to strike out a subsequent remark of the same witness as appears from the following excerpt:

"Q. And you say he walked fifteen feet into the driveway before he was hit? A. He did.

"Q. You mean that driveway in front of the Cadorette house? A. Yes, sir; he was picked up opposite the tree, in the driveway. If the man had hit. the tree, he wouldn't have hit the boy.

"Mr. Hamblett: I ask that last part be stricken out.

"The Court: No; it may stand.

"Mr. Hamblett: Subject to our exception."

The statement objected to was not improper. The witness merely described the position of the child by way of an illustration. As in the case of the earlier answer, if the defendant considered the evidence prejudicial he should have so indicated to the trial court. Having failed to do this, he takes nothing by his exception. Lovett v. Manchester Railway, 85 N.H. 345, 353, 159 A. 132.

At the conclusion of the evidence the defendant made the following offer of proof: "Mr. Hamblett: We offer to prove by this witness that a man who was driving the leading car coming in the opposite direction, immediately after the collision, came up and said, 'It was unavoidable.'

"The Court: The offer is excluded.

"Mr. Hamblett: Subject to our exception."

It is now claimed that this alleged statement was admissible as a part of the res gestae, although there is nothing in the record to show that any such contention was made in the superior court. The declaration "was not even a relation of the facts which caused the accident, but was a mere statement of the opinion" of a third person as to the defendant's fault. Boone v. Transit Company, 139 Cal. 490, 492, 73 P. 243. There was no offer to prove facts from which it could be found "that the utterance was spontaneously made by reason of the excitement caused by the accident." Semprini v. Boston Railroad, 87 N.H. 279, 281, 179 A. 349, 350. Apparently the person who made the statement was unknown. The defendant's father in answer to the question, "The two cars that went through, you don't know who was in them?" said, "No, sir; we tried to find out."

If the ground of admission now claimed had been presented to the presiding judge, he would have been justified in excluding the evidence. Indeed, it is extremely doubtful if he could properly have admitted it even in his discretion. Under such circumstances the defendant's general exception raises no question of law. Boulanger v. McQuesten, 79 N.H. 175, 106 A. 492.

In the course of his argument to the jury plaintiffs' counsel said: "George McCarthy, the father, does admit that when the car stopped it was right where Houghton said that car was; it was twelve feet in that driveway, and Houghton said fifteen feet; Mrs. McCarthy estimated twelve feet—"

The defendant excepted to the allowance of this part of the argument on the ground that the evidence did not support it and that "Houghton's testimony was the car ran over the boy, when he was fifteen feet in the driveway."

It is true that counsel attributed to Mrs. McCarthy testimony given by another witness. But this error appears to be harmless. The plaintiffs' evidence tended to prove that the child was not struck until he had reached a point 12 or 15 feet inside the driveway. The defendant claimed that the accident occurred out in the road and that in trying to avoid the child, who was running toward the car, he turned into the driveway. There was no material dispute as to the point where the car came to a stop, and in view of Houghton's testimony, which was fairly quoted (see Maravas v. Assur. Corporation, 82 N.H. 533, 539, 136 A. 364), it was perfectly legitimate for counsel to argue that the accident happened at that point.

Furthermore the trial court has already passed upon this question. The defendant moved to set aside the verdicts on the following grounds: "that they were against the weight of the evidence; that they were against the law; that the jury was moved by bias, passion and prejudice; that the damages were excessive and that the trial was unfair." This motion was denied subject to the defendant's exception.

By denying the motion the presiding justice has found that the jurors were not swayed by prejudice and that the trial was fair. State v. Hale, 85 N.H. 403, 413, 160 A. 95. Since the exception to the denial of the motion was not referred to in oral argument or mentioned in the defendant's brief, it is deemed to be waived. Kenalos v. Greene Company, 81 N.H. 426, 427, 128 A. 335. The errors which plaintiffs' counsel committed in his argument to the jury were not harmful as a matter of law, and the trial court by denying the motion has impliedly found that they were harmless in fact.

The jury were instructed that the defendant could not be found negligent "for encountering dangers not reasonably to be sensed and not in fact known" and that, if they should find that the boy ran across the highway, it was for them to say whether the defendant had any reason to anticipate that he would do so. The defendant excepted to this instruction on the ground that there was no evidence on which it could reasonably be found that he "had an opportunity to anticipate."

The accident occurred on the main thoroughfare between Milford and Nashua. The traffic was extensive on this highway, and there were several houses near the Cadorette farm. The defendant could not ignore these facts. He was charged with notice that human beings, whether adults or children, might at any time exercise their right to walk along the road or to cross it. St. Louis v. Boston Railroad, 83 N.H. 538, 541, 145 A. 263; Golej v. Varjabedian, 86 N.H. 244, 246, 166 A. 287.

Nor were the jury obliged to accept his assertion that he did not see the boy until the boy was "halfway past the left lane"...