Gaillard v. Boynton, 2881.

• Decision Date: 17 April 1934
• Docket Number: No. 2881.,2881.
• Citation: 70 F.2d 552
• Parties: GAILLARD v. BOYNTON.
• Court: U.S. Court of Appeals — First Circuit

70 F.2d 552 (1934)

GAILLARD v. BOYNTON.

No. 2881.

Circuit Court of Appeals, First Circuit.

April 17, 1934.

John E. Tobin (of Devine & Tobin), of Manchester, N. H., for appellant.

Ora W. Craig, of Concord, N. H. (John M. Stark, of Concord, N. H., on the brief), for appellee.

Before WILSON and MORTON, Circuit Judges, and LETTS, District Judge.

LETTS, District Judge.

This is an appeal from the District Court of New Hampshire predicated upon alleged errors of the trial court in respect to the admission of testimony, his refusal to grant certain requests to charge and the language used in a portion of the charge to the jury stating the elements of damages for which the plaintiff would be entitled to recover, if at all.

The action was brought to recover damages for personal injuries suffered by the plaintiff, appellee, a married woman, fifty-four years of age.

The plaintiff, a short distance from her home, was walking along the edge of a macadam surfaced highway eighteen feet in width. The view of the roadway at this point was unobstructed for a distance of several hundred feet. She testified that she paused, looked back over her shoulder, saw no cars coming, and then proceeded to cross to the other side of the roadway, walking slowly and taking a diagonal course. She had proceeded about eighteen feet when she was struck by the defendant's automobile and remembers nothing further.

The driver of defendant's car testified that he observed Mrs. Boynton when he was three to four hundred feet from her. It was a cold, windy day and the plaintiff, as she proceeded, was bending forward holding her hat on her head. Mr. Mallard, the driver, confirms the plaintiff's statement that she was walking slowly but testified that he was within about twenty feet from her when she changed her course and started to cross the road. He endeavored to check the speed of his car and swerved or turned to the left of the roadway, with the result that plaintiff and the right side of the car came in contact, causing injuries to the plaintiff of such a character that she is now an invalid and in the opinion of a medical expert will never be better.

Mr. Boynton, plaintiff's husband, testified that in conversation with the driver of the car at the scene of the accident he asked Mallard how it happened and that the latter replied: "Well, I did not see her. She jumped right in front of my car."

The plaintiff prior to the accident was in excellent health and, in addition to performing her usual household duties, helped her husband work the farm, he testifying that she was accustomed to milk the cows, make butter, cut wood, and work in the fields. He described her as being "as good as a hired man." There was no evidence of any independent or outside employment. The jury awarded the plaintiff $6,000. The issues here raised relate only to the rulings of the court and his charge to the jury in the course of the trial.

The first exception relates to the admission of testimony of one Clyde Smith who was an employee of plaintiff's counsel. He went to the scene of the accident with Mr. Boynton on the day of its occurrence; observed certain blood marks upon the highway which were pointed out to him and made some measurements. About two weeks later, after Mrs. Boynton's return from the hospital to her home, she accompanied Smith to the scene of the accident, pointing out where she started to cross the road and where she was struck. The distance between these designated points he measured, and timed on that occasion Mrs. Boynton while she walked from one point to the other. Evidence was offered that on this occasion she walked slowly and at the same pace as on the occasion when she was injured. The time required by the plaintiff to walk the distance of eighteen feet and six inches, as recorded by witness Smith, was fourteen seconds.

The defendant objected to the admission of this testimony but without, at the time, stating any specific ground of objection. It is now contended that the testimony was improper as representing a reconstruction of the accident, out of court, based upon statements of the plaintiff. The trial court, at the time of admitting the testimony, ruled that the witness was only testifying to what he did and to measurements based on points shown to him by another witness. The trial court also said in conjunction with the rulings admitting the evidence:

"Now I will say to the jury that as substantive evidence it is only what this man did and the measurements that he took. As to whether or not these points are of any interest to the jury must depend upon the testimony of the witness who preceded him."

And at the conclusion of this portion of the testimony the trial court again stated to the jury:

"Now whether these experiments are of any use must depend upon whether or not the point is substantiated by other testimony in the case."

Afterwards the trial court made it clear to the jury that the measurements taken by witness Smith, in relation to points which the plaintiff had pointed out to him on that occasion, were of no consequence unless the other testimony which had been presented in the case had established those points and measurements as relevant. The timing of the plaintiff's walk between the designated points was likewise dependent upon supporting testimony, to the effect that she traversed the distance at substantially the same pace as on the day and occasion of the accident.

The admissibility of evidence of this character is to a substantial degree within the discretion of the trial court, and his decision, except in cases of palpable abuse clearly resulting in prejudice, will not be reviewed by an appellate court. The very basis of the ruling involves a determination of fact, that is, will the evidence aid the jury? Konold v. Rio Grande W. Ry. Co., 21 Utah, 379, 400, 60 P. 1021, 81 Am. St. Rep. 693; Whitcher v. Boston & M. R. Co., 70 N. H. 242, 46 A. 740; Healey v. Bartlett, 73 N. H. 110, 59 A. 617, 6 Ann. Cas. 413; Field v. Gowdy, 199 Mass. 568, 85 N. E. 884, 19 L. R. A. (N. S.) 236.

Appellant's first assignment of error must be overruled.

Defendant's second assignment of error is based upon an exception interposed to a remark made to the jury by plaintiff's counsel during his argument. The statement objected to was as follows:

"Now, gentlemen, I shall contend that Mrs. Boynton was not out there running an automobile that we all know may be inherently dangerous to life and limb."

The point is stressed in defendant's brief that it has been judicially held that an automobile is not an inherently dangerous instrument and that, therefore, the failure of the trial court to take any action at the time this remark was made to the jury resulted in prejudice to the defendant and was, therefore, a reversible error. With this contention we do not agree.

The question here presented does not at all involve the issue or legal consequences of the custody or use of an inherently dangerous instrument. The trial court in his charge made it clear to the jury that the action was one based upon ordinary negligence and properly stated the law in regard to the burden resting upon the plaintiff of proving defendant's negligence. There is no basis to be found in the record to assume that the jury was improperly influenced by this statement. It amounted to no more than an argument that an automobile, because of its weight and speed, may, if improperly operated, become a hazard to human life. At all times it was clear to the jury that they were to consider the management or operation of defendant's automobile, in other words, the conduct of persons. The exception is without merit and the statement was properly disregarded by the trial court.

Assignments of error Nos. 3, 4, and 5 will be reviewed together. At the conclusion of the court's charge to the jury counsel for the defendant took exception to the refusal of the court to grant certain requests to instruct, which were designated as requests Nos. 2, 3, and 4. These requests were as follows:

"2. If the defendant's driver, when he saw Mrs. Boynton suddenly start across the road toward the east, should not have turned his car toward his left this is not necessarily negligence. It might be a mere mistake in judgment for which the defendant would not be responsible.

"When a person is suddenly called upon to act in an emergency, this fact must be taken into consideration in determining the quality of his act. The excitement incident to such a situation naturally affects the judgment of a prudent man and has a tendency to prevent it from doing its best work. The defendant's driver is held only to the conduct of the ordinary prudent man acting under similar circumstances."

"3. The fact that defendant's driver may have been to the left of the center line of the highway when the accident happened is not in and of itself evidence of negligence."

"4. Negligent inattention on the part of Mrs. Boynton while crossing the road will bar her recovery and the fact that she had nothing to control except her own locomotion is a material factor to be taken into consideration in determining her conduct."

At the time the granting of these requests was refused the court had already instructed the jury in regard to what character of conduct constitutes negligence. He had instructed them in regard to the plaintiff's burden of establishing the defendant's negligence by a fair preponderance of the evidence and had instructed them in regard to the consequences of contributory negligence on the part of the plaintiff and rightly informed them that the burden of establishing contributory negligence, as a defense, was a burden to be borne by the defendant and, in addition, succinctly dealt with the substance of defendant's request No. 2 in the following manner:

"It sometimes happens that a person is suddenly called upon to act in an emergency. If the emergency is not brought about by his previous careless...