Danos v. Manchester Coal & Ice Co.

• Decision Date: 03 December 1946
• Docket Number: No. 3609.,3609.
• Citation: 49 A.2d 926
• Parties: DANOS v. MANCHESTER COAL & ICE CO. et al. (two cases).
• Court: New Hampshire Supreme Court

49 A.2d 926

DANOS

v.MANCHESTER COAL & ICE CO. et al. (two cases).

No. 3609.

Supreme Court of New Hampshire.

Dec. 3, 1946.

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

Separate actions on the case by John X. Danos and by Eva J. Danos against the Manchester Coal & Ice Company and Walter H. Dugay for personal injuries and property damage resulting from a collision of automobiles at an intersection. The jury returned verdicts for both plaintiffs against both defendants, and defendants bring exceptions.

Judgments on the verdicts.

Two actions on the case to recover for personal injury and property damage resulting from a collision of automobiles at the intersection of Maple and Harrison Streets in the city of Manchester. Trial by jury with verdicts for both plaintiffs against both defendants. Defendants' bill of exceptions was allowed by Wheeler, J.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester, for plaintiffs.

Sheehan, Phinney & Bass, of Manchester, and Alvin A. Lucier, of Nashua (W. L. Phinney, of Manchester, orally), for defendants.

BRANCH, Justice.

The defendants' claim that a new trial should be granted is based upon their exceptions to two rulings of the Trial Court excluding offered testimony.

1. During the cross-examination of Ovila R. Provost, the police inspector who investigated the accident immediately after it occurred, the following question was put to the witness: ‘Mr. Lucier: Q. Would the general layout at the scene of the accident strike you as confirming the proposition that she was going fifteen to seventeen miles an hour and that he had just started and gone about a foot? A. Yes, sir.’ To this testimony the plaintiffs objected upon the ground that ‘It is beyond the power of the witness to conclude that.’ The objection was sustained and the defendants excepted. ‘The admissibility of opinion evidence, under the liberal rule in force in this state, does not depend upon the nature of the issue upon which that evidence bears (Davis v. [Boston & M.] Railroad, 75 N.H. 467, 76 A. 170, Higgins v. Carroll, 86 N.H. 312, 167 A. 270; Goldstein v. [United Amusement] Corporation, 86 N.H. 402, 169 A. 587) but upon whether or not, in the second discretion of the presiding justice, evidence of that nature will probably aid the jury in their search for the truth. Carbone v. [Boston & Maine] Railroad, 89 N.H. 12, 20, 192 A. 858.’

Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 236, 17 A.2d 529, 532. The ruling of the Court excluding the above testimony involves an implied finding that, ‘in the sound discretion of the presiding justice’ the offered evidence probably would not aid the jury in their search for the truth. Such a discretionary finding by the Trial Court is not reviewable here, and defendants' exception is overruled.

2. After the...