Hutchinson v. Knowles

• Decision Date: 05 May 1936
• Parties: FRED HUTCHINSON, b/n/f v. HERBERT KNOWLES
• Court: Vermont Supreme Court

184 A. 705

108 Vt. 195

FRED HUTCHINSON, b/n/f v. HERBERT KNOWLES

Supreme Court of Vermont

May 5, 1936

January Term, 1936.

Automobiles---Disclosure of Insurance When Coupled With Admission of Liability---Statement Held No Admission---Declarations of Party---Admissibility of All Material Conversation---Statements of Third Party Held Not Material---Card Indicating Insurance Connections Held Inadmissible---Negligence---Similar Conduct of Others Not Admissible---Evidence of Similar Conduct as Bearing on Issue Not Then Raised Held Properly Excluded---Harmless Error---Exclusion of Testimony Relating to Damages Where Verdict for Defendant---Exclusion of Photographs Held Proper---Admission of Opinion Evidence Held Harmless---Charge Plaintiff Had No Right to Assume Road Clear Held Not Open to Objection Made---Charge on Contributory Negligence Held Proper---Applicability of Assumption of Risk Doctrine---Necessity of Voluntary Assent to Risk---Assumption of Risk Held Properly Charged---Questions Not Raised Below---Failure to Sound Horn as Negligence Held Not Chargeable---Manner of Judging Defendant's Conduct Held Properly Charged---No Justification of Violation of Statute---Request to Charge Violation of Statute Not Justified Held Properly Denied---Request to Charge as to Defendant's Assumption of Risk Held Properly Denied.

1. While the fact that an insurance company is defending a case must not needlessly be brought to the attention of the jury evidence disclosing that defendant was insured is admissible where such evidence is inextricably coupled with a direct or implied admission by defendant of liability.

2. In action for negligence arising out of motor vehicle accident statement by defendant that his insurance company said they would settle for plaintiff's injuries held inadmissible since it contained nothing to indicate an admission of liability by defendant, was purely hearsay, and there was no claim that the insurer had authority to speak for defendant.

3. When the declarations of a party are given in evidence against him, all that he said at the time that is material to the subject matter must be received and weighed.

4. In negligence action arising out of motor vehicle accident where written statement given by plaintiff to an individual with whom he talked about the accident was offered on cross-examination and received without objection, where plaintiff was permitted on redirect to testify to all the talk between himself and such person regarding the accident and where such person was not called as a witness, held that further evidence offered on redirect to show that such person told plaintiff he represented defendant's accident insurance company, that plaintiff would have to sign the statement, and that a copy of it would be given to the State, was properly excluded, since it had nothing to do with anything contained in plaintiff's statement and offered evidence was merely hearsay.

5. In such circumstances, held that the individual's business card, offered to show his connection with insurance company, as showing his bias, was properly excluded.

6. Generally speaking, evidence that others acted in the same manner as is claimed to constitute negligence of a party is inadmissible.

7. In action for negligence arising out of motor vehicle accident, where the two trucks involved were employed on the same highway construction job, where plaintiff offered to show on redirect examination that other trucks were driven down the hill at the point where the accident occurred as fast as, or faster than, he was driving at the time of the accident, and urged on review that such evidence was admissible as bearing upon probability of issue made by defendant of custom of driving to the left at such point by trucks going up the hill, and where at the time the offer was made only evidence on such issue was that plaintiff had denied existence of such custom, held that exclusion of such evidence at time it was offered was without error.

8. In such action, exclusion, as not being redirect examination, of medical testimony relating to element of damages only, held harmless where verdict was for defendant.

9. Admission in automobile negligence cases of photographs purporting to show scene of accident is largely in discretion of trial court and its rulings are not ordinarily reviewable.

10. In such action, where plaintiff offered in evidence two photographs of scene of accident for purpose of showing space in highway occupied by truck similar in size to those involved in accident and width and general appearance of highway, etc., where trucks shown in photographs were not in positions claimed to have been occupied by trucks involved at time of accident, and where all facts covered by offer, that plaintiff was entitled to show, appeared from other photographs and evidence, held, that Supreme Court would presume that evidence was excluded as matter of discretion and would not disturb the ruling, and that plaintiff was not harmed by its exclusion.

11. In such action, admission of evidence that fill, over which defendant would have been obliged to drive if he had remained on right-hand side of road, was unsafe, objected to on ground that issue of safety of fill was for jury and opinion evidence was inadmissible, held harmless where defendant later testified that he could have left room for the plaintiff's truck to pass without going onto the fill.

12. In such action, where evidence tended to show that trucks, on account of rut or gully in the road, were accustomed to travel where defendant's truck was at place of collision, and that plaintiff knew or ought to have known this, exception to charge that driver of automobile has no right to assume road is clear but is bound to be vigilant and to anticipate presence of others, on ground that in the circumstances the plaintiff had a right to assume that the road would be clear at such a dangerous place, held unavailing.

13. In such action, charge of court regarding contributory negligence excepted to on ground that this issue was not in the case, held without error where record clearly showed otherwise, and court had previously charged on this issue without any exception being taken.

14. The doctrine of assumption of risk in its primary and narrow sense can apply only where there is a contractual relation between the parties, ordinarily that of master and servant, but in its broader sense it may apply where no such relation exists, within the limits of the maxim, volenti non fit injuria.

15. For doctrine of assumption of risk to apply, it is not enough that the plaintiff knew and appreciated the danger, he must voluntarily put himself in the way of it.

16. In action for negligence arising out of motor vehicle accident, held that evidence justified conclusion that plaintiff, after he learned position of defendant's truck in highway, appreciated the danger of attempting to pass it and could have stopped his own truck before reaching defendant's, and that charge of court regarding assumption of risk, excepted to on ground that the issue was not in the case, was without error.

17. Question not raised below will not be considered in Supreme Court.

18. In action for negligence arising out of motor vehicle accident, exception to charge because jury was not instructed that failure of defendant to sound his horn when driving to left of center of highway constituted negligence as being violation of P. L. 5110, subd. XV, held without merit, since the statute contains no such requirement and plaintiff, on his own testimony, saw defendant's truck in season to have avoided an accident.

19. In such action, charge of court that plaintiff's conduct was to be judged in the light of the dangers he might reasonably have expected to encounter, excepted to on ground that court failed to tell jury, in the same connection, that defendant's conduct should be judged in the same way, held without error, since the omission objected to was fully covered by the charge taken as a whole.

20. Generally speaking, a violation of the statute requiring automobiles to be driven on the right-hand side of the road cannot be justified.

21. In negligence action arising out of motor vehicle accident where evidence tended to show that because of condition of surface of highway, all trucks on construction job, including plaintiff's, were driven to left of center at point where accident occurred when traveling in direction in which defendant was traveling at time of accident, held plaintiff was not entitled to charge that course of defendant's truck was taken as a matter of convenience and not of necessity, and that defendant was not justified in violating statute relative to position of motor vehicles on highway.

22. In such circumstances, held that plaintiff was not entitled to a charge that if jury found that defendant operated his truck to left of center of highway, he assumed the risk of such experiment and was required to use greater care than if he had kept to right.

ACTION OF TORT for personal injuries received in a motor vehicle accident. Plea, the general issue. Trial by jury at the June Term, 1934, Orange County, Cleary, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Finn & Monti for the plaintiff.

Theriault & Hunt for the defendant.

Present: SLACK, MOULTON, THOMPSON, and SHERBURNE. JJ., and BUTTLES, Supr. J.

OPINION

SLACK

The action is tort for personal injuries received in an automobile accident, and the case is here on plaintiff's exceptions. At the time of the accident, and for some days before, the parties together with several others were employed on a highway construction job hauling gravel in...