Buxton v. Langan
| Decision Date | 03 January 1939 |
| Citation | 3 A.2d 647 |
| Parties | BUXTON v. LANGAN (two cases). SAME v. BUXTON (two cases). |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Hillsborough County; Lorimer, Judge.
Actions for negligence by Laura Buxton and Frank C. Buxton against Francis M. Langan and Harry Buxton for injuries sustained by Laura Buxton while a passenger in an automobile rented by Francis M. Langan to Harry Buxton who was driving the automobile. Verdicts for defendants, and plaintiffs except.
Exceptions overruled.
Actions, for negligence. Trial by jury and verdicts for defendants. The plaintiff Laura was injured while a passenger in an automobile rented by the defendant Langan, herein called the defendant, to the other defendant who was driving it. It was one of the plaintiffs' claims that the accident was due to a defective condition of the brakes of the car. To meet the claim, one Rosenfeld, an agent of the defendant, testified that he tested the brakes on the day of the accident and immediately before the car was taken by the defendant who hired it and again a day or so after the accident, finding them in good working condition on both occasions. Following him as a witness, the defendant was allowed to testify to an established procedure or rule of testing the brakes of a car before renting it, and the plaintiffs excepted.
The record relating thereto is as follows:
Transferred by Lorimer, J.
Albert J. Lemieux and Osgood & Osgood and Clinton S. Osgood, all of Manchester, for plaintiffs.
Devine & Tobin and John E. Tobin, all of Manchester, for defendants.
The trial court's statement that the evidence excepted to bore on the defendant's due care was broad and ambiguous in respect to any particular issue of care. It follows that if the evidence was admissible on any issue of liability, the exception cannot be sustained, since the plaintiffs made no request for its limitation of use. Morris v. Boston & M. Railroad, 85 N.H. 265, 274, 160 A. 52, and cases cited.
At the trial the plaintiff's sole objection to the evidence was that it was irrelevant on the issue of testing the brakes, because there was direct evidence of the test and its manner. They now contend that the evidence of the rule or custom to test a car before renting it was unrelated to the evidence of the test claimed to be made. They say that it did not tend to show a habit of the agent to test. If it be assumed that this point may now be raised, there was evidence that the agent's engagement to rent cars had covered a substantial period of time, and it is a reasonable inference that the rule or practice established by the defendant was known to him although he did not testify to such effect. The procedure which the defendant testified was in force was, as the fair inference from his testimony, employed by all of his agents and servants who had the assignment of renting cars, and customarily observed by them. There was no evidence that the rule was not an enforced one or that the practice was indifferently followed. It follows that it might be found that the agent made his test because in knowledge of the rule it was his habit to test.
As evidence to show why the test was made, it was competent. "When the question is whether a certain act was done, evidence of a motive for...
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...of the conduct of both the defendant's servant and the decedent. Jordan v. Boston & M. R. R., 80 N.H. 105, 113 A. 390; Buxton v. Langan, 90 N.H. 13, 3 A.2d 647; McCormick, Evidence (1954) 343. The defendant relies on Sewall's Falls Bridge v. Fisk, 23 N.H. 171, but that case is distinguishab......
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