Healy v. Moore
| Decision Date | 06 October 1936 |
| Docket Number | No. 2465.,2465. |
| Court | Vermont Supreme Court |
| Parties | HEALY v. MOORE. In re DONAHUE'S ESTATE. |
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Exceptions from Washington County Court; Deane C. Davis, Judge.
Action by J. A. Healy, administrator of the estate of William Donahue, deceased, against James Moore. To review a judgment for plaintiff, both parties bring exceptions.
Judgment affirmed in accordance with opinion.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
Theriault & Hunt and Peter Giuliani, all of Montpelier, for plaintiff.
J. Ward Carver, of Barre, and Fred E. Gleason, of Montpelier, for defendant.
While driving his automobile along the highway in the village of Websterville, on the evening of October 14, 1933, the defendant struck and killed William Donahue and his wife, Rose Donahue, who were walking along the road in the same direction as that in which the defendant was proceeding. This action was brought by the administrator of William Donahue, to recover pecuniary damages suffered by the next of kin of his intestate, under the provisions of P.L. 2860. Trial was by jury with verdict and judgment for the plaintiff. The cause comes before us on exceptions by both parties; those of the defendant being to certain rulings upon evidence, to the argument of plaintiff's counsel, to certain instructions to the jury, and to the denial of defendant's motion to set aside the verdict; and those of the plaintiff being to the denial of his motion for a close jail execution.
The negligence alleged was that the lights of the defendant's automobile were tilted down so that the visibility was confined to a distance of 50 feet, instead of 150 feet as required by statute; that, in view of this failure of visibility, the defendant was driving at an excessive rate of speed; that he did not keep a proper lookout for pedestrians in the highway; that he failed to sound any signal of his approach to warn the plaintiff's intestate, when he saw or ought to have seen the pedestrians in front of him; that he failed to have his automobile under proper control so that when he saw or ought to have seen the plaintiff's intestate he could have stopped or turned out to avoid striking him, and by failing, when he had reached this point, to operate the car so as to avoid the accident. Our first consideration will be given to the defendant's exceptions.
Exceptions to Evidence.
The plaintiff's intestate and his wife had been spending the evening at the home of the latter's sister, Catherine Boyce, and the accident took place soon after they had left and while they were on their way to their home situated near by, but on the other side of the road. Miss Boyce was a witness and was asked by plaintiff's counsel whether shortly after the Donahues had left, she heard the sound of an automobile horn, and answered, "No." Her answer was taken subject to defendant's exception as being immaterial and incompetent, since she was in the house at the time and presumably could not have heard the horn if it had been sounded. Whether this was so, within the rule in Lefebvre's Adm'r v. C. V. Ry. Co., 99 Vt. 366, 380, 133 A. 359, we need not inquire, for if there was error it was rendered harmless by the subsequent admission of the defendant, when a witness in his own behalf, that he did not sound his horn. State v. Pierce, 88 Vt. 277, 278, 92 A. 218; State v. Colby, 98 Vt. 96, 98, 126 A. 510.
After the accident there were found upon or near the traveled highway one of the shoes worn by Mrs. Donahue, a pipe stem and tobacco can belonging to plaintiff's intestate, an envelope containing photographs, and a cake which he had been carrying home from the Boyce house. The shoe was first found by Motor Vehicle Inspector Fitzsimons, during his examination of the place, about an hour and a quarter after the collision and its exact location noted by him. Afterwards he threw it to the side of the road, where it was subsequently found by another witness. The pipe stem, tobacco tin, cake, and envelope were discovered by other witnesses the next morning. The evidence concerning their location, and the articles (except the cake and the envelope), were admitted as tending to show that the accident occurred at a point at least as far to the west as the places where they were observed to be, subject to defendant's exception, on the ground that the evidence had no tendency to show just where in fact the contact occurred. But this was not the purpose for which it was received, and notwithstanding the defendant's argument that the articles were light and small and easily moved, that quite a number of people gathered at the place, and that nothing except the shoe was found until the next morning, it cannot be said that the evidence was without some slight probative effect upon the matter covered by the offer, and no reversible error appears. The objection went only to the weight of the evidence.
The witness Kirke testified to the condition of the defendant's automobile after the accident. He said that the right front fender was damaged, the right headlight bent back, and the lens broken, and an iron tube to which the license plate was attached was bent back towards the radiator. On cross-examination by defendant's counsel, he was asked whether it took much force to bend the iron tube, and whether much or little pressure was required to bend back the headlight. Each question was excluded as not being cross-examination, and the defendant excepted. Although the witness was a repairman, and, it may be, might have qualified as an expert, he had not testified as such, but had given evidence only as to his observation of the condition of the car. Under these circumstances the defendant was not entitled as of right to ask questions involving his opinion, and the ruling was without error. Enos v. St. Paul Fire & Marine Ins. Co., 4 S.D. 639, 57 N.W. 919, 46 Am.St.Rep. 796, 812. It was within the discretionary control of the court over the cross-examination, and, the contrary not appearing, will be taken to have been made in the exercise of such discretion. State v. Long, 95 Vt. 485, 491, 115 A. 734. Abuse thereof does not appear.
An emblem which had been attached to defendant's car was found in two parts in the roadway. One part was near the automobile, the other further back. They were offered as tending to show the force of the collision and that the accident happened as far back as the location of the rearmost part, and received subject to defendant's exceptions. That, from the composition of the emblem, the jury could have formed some opinion of the blow by which it was broken from the car in pieces, is sufficiently apparent. And so far as the second offer is concerned, the question is covered by what we have said concerning the other articles found in the vicinity. No error is made to appear.
A coat which appears to have been torn and which had been worn by Mrs. Donahue at the time of the accident was introduced as an exhibit, subject to defendant's exception. It was offered to show the force of the collision. The objection was that it had no such tendency. The defendant argues that while the witness who identified it (Mrs. Donahue's daughter) testified that it was in the same condition as it was after the accident, it was not shown that its then condition differed from what it was before the accident. But this point was not called to the attention of the trial court, and is unavailing here.
On cross-examination of the defendant the following occurred:
On motion by plaintiff's counsel, the latter answer following the words, "they were in the road," was stricken from the record, and defendant excepted. No grounds for the exception were stated, but it must have been clear to the court that the only reason could have been that the answer was responsive. We think that the answer should have been allowed to stand. The witness had previously, on both direct and cross examination, testified that, when he saw the Donahues move into the roadway, he applied his brakes with force. What he said regarding a slight application plainly referred to his action when he approached the two persons but before they stepped into the road; and he reiterated that, as he said, he "slapped on the brakes" as soon as he saw them change their position. By striking out the latter part of the answer, the record was left so that the jury might conclude that his previous testimony was modified, and instead of a forceful application of the brakes, there was only a slight one. Taken as a whole, the answer was responsive and should have been allowed to stand; but it does not follow that the error is such as to cause a reversal, because there was an ample opportunity for the defendant, on redirect examination, fully to explain his conduct, and so it cannot be said that he was prejudiced by the ruling.
Exception to Argument.
During a view of the scene of the accident, taken by consent of both parties, the defendant's counsel called the jury's attention to a tree from which a limb had been broken off. No evidence was introduced with regard to it, but in his argument the plaintiff's counsel said:
On objection and exception to this argument the court ruled that it was improper. Counsel for the plaintiff withdrew it. Although there was no...
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