Cormier v. Conduff

• Decision Date: 30 April 1968
• Docket Number: No. 5699,5699
• Citation: 241 A.2d 795,109 N.H. 19
• Parties: Dorene A. CORMIER et al. v. Lloyd E. CONDUFF.
• Court: New Hampshire Supreme Court

Page 795

241 A.2d 795

109 N.H. 19

Dorene A. CORMIER et al. v. Lloyd E. CONDUFF.

No. 5699.

Supreme Court of New Hampshire.

Argued Feb. 7, 1968.

Decided April 30, 1968.

Rehearing Denied May 29, 1968.

Hartnett & Moher, Charles F. Hartnett, Dover, for plaintiffs.

Boynton, Waldron & Dill, Richard E. Dill, Portsmouth, for defendant.

GRIFFITH, Justice.

These are four actions arising out of a collision on December 15, 1964, on Piscataqua Road in Dover between a Volkswagen operated by plaintiff Dorene A. Cormier, and a Ford Sedan operated by defendant Lloyd E. Conduff. Plaintiff Patricia A. Curry was a passenger in the Cormier vehicle. Francis H. Cormier and Patrick H. Curry have brought actions for consequential damages as husbands of the two principal plaintiffs. Trial by jury resulted in a verdict for the defendant in all four actions. Plaintiffs' bill of exceptions was transferred by Morris, J.

The road ran generally north and south and immediately prior to the accident the Cormier car which had been traveling in a southerly direction was making a left-hand turn into a driveway, at the home of Mr. and Mrs. Cummings. The Conduff vehicle proceeding in a northerly direction collided with the Cormier vehicle at the driveway. The road south of the Cummings driveway was uphill for some thirty to thirty-five feet and then downhill so that for some of the time when the defendant was south of the crest the two cars were not visible to each other. Near the crest of the hill was a twenty-five mile an hour limit sign. The defendant testified that his speed was forty miles per hour prior to the accident and agreed that he was speeding at the time of the accident.

The plaintiff in argument waived exception to the submission to the jury of the issue of contributory negligence of plaintiff Cormier and relies specifically upon three claims of error.

We consider first plaintiff's exception to the exclusion by the Trial Court of the opinion of a Dover police officer as to the speed of the defendant Conduff's vehicle determined from brake marks of approximately one hundred fifty-six feet in length. It appeared from the testimony of the police officer and the offer of proof made by plaintiffs' counsel that the officer had some ten years' experience in police work including special training in the investigation of accidents. The officer proposed to compute the speed of the defendant's car prior to the accident by use of a template. The objection by defendant's counsel particularly called the Trial Court's attention to the fact that the skid marks were not over a level road but over the crest of a hill. The Trial Court by excluding the opinion evidence found that it would not aid the jury.

There are a few areas under the law in this state where a trial judge has wider discretion than in the admission or exclusion of opinion evidence. Ricker v. Mathews, 94 N.H. 313, 317, 53 A.2d 196, 171 A.L.R. 296. Subsequent to Paquette v. Connecticut Valley Lumber Company, 79 N.H. 288 and Gardner v. Commercial Machine Company, 79 N.H. 452, 111 A. 317, which removed restrictions on the admission of opinion evidence on matters of common knowledge the cases have uniformly upheld the Trial Court's admission of opinion evidence. Currier v. Grossman's of New Hampshire, Inc., 107 N.H. 159, 219 A.2d 273; Zellers v. Chase, 105 N.H. 266, 197 A.2d i06; Walker v. Walker, 106 N.H. 282, 210 A.2d 468. Consistency in the application of the rule requires that the Trial Court's exclusion of opinions be supported unless there is clear abuse of discretion. Estimating speed from skid marks involves numerous factors including weight of vehicles, nature of road surface and slope and the coefficient of friction. See 47 Marquette L.R. 491; 1963 Ins. Law Journal 340. The Trial Court was obviously not satisfied that the testimony and offer of proof sufficiently took into account all of the factors existing in this case necessary for a meaningful opinion. Its finding may not be overruled by this court. Salisbury Beach Associates v. Littlefield, 89 N.H. 447, 448, 200 A. 777.

The Trial Court's charge to the jury included portions of RSA 262-A:42, subd. I, as follows: 'No person shall turn a vehicle at an intersection * * * or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal * * *.' (emphasis supplied).

The plaintiff excepted to the charge permitting the jury to consider the turning statute and 'particularly the portion relating to the signal, as to the conduct of Mrs. Cormier.' While there was evidence to warrant submission of the statute exclusive of the last sentence, there was no evidence from which the jury could find that the turning signal was not given or that a failure to give it would have been causal of the accident. It appears that the last sentence was included inadvertently, since the remainder of the statute defining 'appropriate signal' was not given.

The test to determine whether or not the instructions unauthorized by the evidence are grounds for reversal is whether 'the jury could have been misled.' Charrier v. Boston & M. Railroad, 75 N.H. 59, 64, 70 A. 1078, 1081. The case of Berounsky v. Ogden, 90 N.H. 334, 336, 9 A.2d 510, relied upon by the plaintiffs concerns an erroneous charge where the jury were told a statute 'probably' had some application. The court ruled that the jury could have been misled by the instruction. In the instant case, however, the jury was instructed that whether the statute was violated and whether violation was causal to the accident was for their determination. In our opinion considering the charge as a whole in all probability the jury could not have been misled (State v. Story, 97 N.H. 141, 161, 83 A.2d 142; Lindberg v. Swenson, 95 N.H. 184, 186, 60 A.2d 458) and the exception is overruled.

The third exception relied upon by the plaintiff is to the submission to the jury of the issue of the contributory negligence of plaintiff Curry, the passenger.

Mrs. Curry testified that prior to the accident she was looking in the direction of the defendant's car but that she did not see the headlights of defendant's car until it was almost on top of them. She further testified that if she had seen the lights coming she would have warned Mrs. Cormier, her driver. Mrs. Cormier, the driver, testified that she looked in the direction of the defendant's car and there was nothing in her testimony to indicate that she was in any way relying upon any observation but her own.

In the absence of knowledge that a driver is unsuitable, a passenger is under no general requirement to keep a lookout any may not be found contributorily negligent for failure to look. Laflamme v. Lewis, 89 N.H. 69, 77, 192 A. 851; Mason v. Andrews, 86 N.H. 277, 279, 167 A. 156; LePage v. Theberge, 97 N.H. 375, 89 A.2d 534; Cyr v. Boston & M. Railroad, 88 N.H. 278, 281, 188 A. 3; Griswold v. Richards, 105 N.H. 214, 217, 196 A.2d 709. Unlike the case of Bixby v. Boston & Maine Railroad, 94 N.H. 107, 47 A.2d 575, 165 A.L.R. 590 the passenger had not undertaken to act...