Dorr M. Thayer v. Walter B. Glynn

• Decision Date: 06 May 1919
• Parties: DORR M. THAYER v. WALTER B. GLYNN
• Court: Vermont Supreme Court

106 A. 834

93 Vt. 257

DORR M. THAYER v. WALTER B. GLYNN

Supreme Court of Vermont

May 6, 1919

February Term, 1919.

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

Reversed and remanded.

Ryder & Graham for the defendant.

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

OPINION

POWERS

This is an action wherein the plaintiff seeks to recover damages to his person and property resulting from the negligent operation of the defendant's automobile. While the evidence was sharply conflicting, that favoring the plaintiff tended to show that the collision between the plaintiff's team and the defendant's automobile was due to the negligence of the latter in driving on the wrong side of the road, as alleged in the declaration. The accident occurred on the evening of October 29, 1916, at a point in the highway between Bellows Falls and Saxtons River called the Rhodes Curve, and resulted in the death of the plaintiff's horse and injuries to his person and property. Verdict and judgment below were against the defendant, and he brings the case here on the transcript as a bill of exceptions.

1. There was no error in the refusal of the court to strike out that part of the conversation which took place between the plaintiff and defendant at the time of the accident, which included a statement by the latter that he would settle the damages. So far as the plaintiff's testimony to this effect is concerned, it is enough to say that the evidence came in without objection and without any attempt to stop the witness. In these circumstances, the motion to strike out was addressed to the court's discretion; and, the contrary not appearing, it will here be taken that the ruling was made as a matter of discretion. Slack v. Bragg, 83 Vt. 404, 76 A. 148.

But when the witness Willard testified as above, objection was made and an exception saved. The objection was based upon the claim that the defendant's statement was an offer of compromise, an overture of pacification, and therefore was privileged and inadmissible. But this could not be so for the simple reason that it was not a part of any treaty for compromise or settlement; no such treaty was then pending of which it could be a part. It was an independent and voluntary offer to pay, and an indirect admission of liability. As such, it was admissible. Clapp v. Foster, 34 Vt. 580; Moore v. Hill, 62 Vt. 424, 19 A. 997; Bassett v. Shares, 63 Conn. 39, 27 A. 421; Teasley v. Bradley, 110 Ga. 497, 35 S.E. 782, 78 Am. St. Rep. 113; Alexander v. Smith, 180 Ala. 541, 61 So. 68; Langdon v. Ahrends, 166 Iowa 636, 147 N.W. 940.

2. Nor was there error in refusing to strike out the plaintiff's statement that since the accident he was nervous and didn't like to drive in the nighttime. This was nothing more than his way of describing the nervous condition in which the accident left him, and was clearly admissible on the question of damages. Rea v. Harrington, 58 Vt. 181, 2 A. 475, 56 Am. Rep. 561.

3. The plaintiff offered in evidence a photograph of the scene of the accident in which was shown a horse and wagon headed toward Bellows Falls and an automobile headed in the opposite direction. These objects had been placed by some one acting in the plaintiff's interest, and it was claimed that they were located just as the plaintiff's evidence tended to show the team and automobile were at the time of the collision. The photograph was objected to on the ground that the team and automobile were not the ones involved in the accident and because the photograph amounted to nothing more than an experiment. No other objection was specified, and, when the photograph was admitted, the exception was limited to the ground stated. An experiment is not necessarily to be excluded. Whether made in or out of court, it may, in the discretion of the court, and subject to some administrative requirements, be admitted. Walker v. Westfield, 39 Vt. 246; Ide v. Boston & Maine Railroad, 83 Vt. 66, 74 A. 401, 3 Chamb. Ev. § § 1739, 3172; Chicago, etc., R. Co. v. Champion, 9 Ind.App. 510, 36 N.E. 221, 37 N.E. 21, 53 Am. St. Rep. 357, and note. See also, Foote v. Woodworth, 66 Vt. 216, 28 A. 1034, and State v. Bean, 77 Vt. 384, 60 A. 807. The fact that the material objects used in the experiment were not the identical ones involved in the accident does not affect the question of admissibility. It is enough if, as here, they were sufficiently similar to make the conditions essentially the same. Burg v. Chicago, etc., R. Co., 90 Iowa 106, 57 N.W. 680, 48 Am. St. Rep. 419; Chicago, etc., R. Co. v. Champion, 9 Ind.App. 510, 36 N.E. 221; Hauser v. People, 210 Ill. 253, 71 N.E. 416. The objection being specific and limited, the exception will not be enlarged beyond its terms. Graves v. Waitsfield, 81 Vt. 84, 69 A. 137. Therefore the question discussed under this exception is not before us.

4. Subject to exception, the plaintiff was allowed to show by cross-examination of the defendant that by use of the emergency brake he could stop a similar car...