Johnston by Johnston v. Lynch

• Citation: 133 N.H. 79,574 A.2d 934
• Decision Date: 30 April 1990
• Docket Number: No. 88-058,88-058
• Parties: Cain A.J. JOHNSTON, by his father and next friend James M. JOHNSTON, and James M. Johnston, individually v. Frank LYNCH.
• Court: Supreme Court of New Hampshire

Page 934

574 A.2d 934

133 N.H. 79

Cain A.J. JOHNSTON, by his father and next friend James M. JOHNSTON, and James M. Johnston, individually v. Frank LYNCH.

No. 88-058.

Supreme Court of New Hampshire.

April 30, 1990.

Law Offices of James J. Kalled, Ossipee (James J. Kalled and John P. Kalled on the brief, and John P. Kalled orally), for plaintiffs.

Wiggin & Nourie, Manchester (Fred J. Desmarais, et al., on the brief, and Diane M. Smith orally), for defendant.

THAYER, Justice.

This negligence action arose from a collision between an automobile driven by the defendant, Frank Lynch, and a bicycle ridden by Cain A.J. Johnston (Cain). Following a trial in the Superior Court (McHugh, J.), the jury returned a verdict for the defendant. The plaintiffs appeal from the jury verdict and the trial court's denial of their post-trial motion to set aside the verdict, alleging the following errors: (1) the verdict is against the weight of the evidence or is the product of plain mistake, passion, partiality or corruption; (2) the trial court erroneously excluded the opinion testimony of the investigating officer concerning fault, and the manner and cause of the collision; (3) the trial court erroneously excluded evidence of the defendant's leaving the scene of the accident; (4) the trial court's jury instructions misled the jury on vital issues, thereby causing undue prejudice to the plaintiffs; and (5) the trial court wrongfully compelled the plaintiffs to disclose the identity of an expert they did not intend to call as a witness at trial, to produce the expert for a deposition by the defendant, to produce statements taken by the plaintiffs' counsel from the investigating officer and two eyewitnesses, and to pay the defendant's costs of redeposing James M. Johnston (Mr. Johnston). For the reasons that follow, we affirm.

The facts are as follows. On July 27, 1983, around 10:50 a.m. thirteen-year-old Cain Johnston and two friends were at Patch's Store, in Glen, which is located on the south side of Route 302. The boys left the store and began riding their bicycles in a westerly direction on the left side of the road. Soon thereafter, one of the boys crossed from the left to the right side of Route 302, still traveling west.

The defendant, who was driving an automobile, was also traveling west along Route 302. When he first saw the boys, there were two on the left side of the highway and one on the right. Mr. Lynch testified that he was driving approximately thirty miles per hour and was around 1,000 feet away from the boys when they first came into his view. The defendant explained that, when he saw the three boys, he immediately "let go of the gas." As he approached the boys, the one further away on the left crossed over to the right side of the highway. Then, out of the corner of his eye, the defendant saw the closer boy on the left, Cain, turn to come onto the road. The defendant testified that, when he saw Cain, he jammed on his brakes. However, he was unable to stop his car before colliding with the rear wheel of Cain's bicycle.

According to Cain, he looked both behind and in front of him before he crossed Route 302. He testified that after he had started across he "glanced back and saw a car coming, figured [he] had plenty of time to make it ... [and] kept going." When he was almost across the highway, Cain heard tires squealing, and the next thing he remembered was starting to get up from the ground.

Following the collision, the defendant got out of his car and went over to Cain, who was already standing up. Mr. Lynch asked Cain whether he was hurt and offered to drive him to the hospital. Cain responded that he was "okay" and did not want any help from the defendant. Cain and his friends then started walking away, and the defendant followed them in his car. He stopped and got out of his car once more to make sure Cain was all right and to offer his assistance. However, after Cain repeatedly refused his help, Mr. Lynch drove off.

Cain's mother testified that after Cain told her about the accident, she noticed that Cain had a bump on his head, and scratches and bruises on his body. On the same day that the collision occurred, Cain's grandmother took him to see a doctor, who found that Cain suffered from nothing more than some bruises and abrasions. After learning a few days later that Cain was having headaches, the doctor had Cain's skull x-rayed. The x-rays came back indicating no skull fracture. In April, 1985, Dr. Abroms, who practiced in Worcester, Massachusetts, performed a pediatric neurological examination of Cain. Dr. Abroms concluded that although he had suffered a cerebral concussion at the time of the injury, Cain's neurological evaluation was normal. Then, during the summer of 1985, another neurologist, named Dr. Poser, examined Cain. This doctor also determined that Cain had had a cerebral concussion, but contrary to Dr. Abroms, this doctor concluded that the concussion resulted in moderate to severe permanent brain damage.

Cain Johnston and his father brought suit by a writ of summons dated April 25, 1985, alleging that Mr. Lynch operated his automobile in a negligent manner, causing Cain to suffer permanent personal injuries, and his father to incur expenses for Cain's medical treatment. Following a two-week trial, the jury returned a verdict for the defendant. The plaintiffs filed a motion to set aside the verdict and for a new trial which the court denied. This appeal followed.

The first argument the plaintiffs make on appeal is that the verdict is against the weight of the evidence or is the product of plain mistake, passion, partiality or corruption. Whether a jury verdict is against the weight of the evidence is a separate issue from whether it is the product of plain mistake, passion, partiality or corruption. Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 600-01, 529 A.2d 976, 982 (1987) (citing Wisutskie v. Malouin, 88 N.H. 242, 245-46, 186 A. 769, 771 (1936)). Both issues, however, are questions of fact for the trial court. See Bennett v. Larose, 82 N.H. 443, 447, 136 A. 254, 256 (1926). On appellate review, we will not disturb the trial court's ruling absent an abuse of discretion. See Panas v. Harakis & K-Mart Corp., 129 N.H. at 599, 529 A.2d at 981. The standard that a trial court must apply in ruling on a motion to set aside a jury verdict is whether or not the verdict was reasonable in light of the evidence. Id. at 603, 529 A.2d at 983.

Initially we will address whether the trial court abused its discretion in failing to set aside the jury's verdict on the ground that it was against the weight of the evidence. Based on the evidence included in the record, the jury could have found that the defendant was traveling approximately thirty miles per hour when he first saw Cain and his friends about 1000 feet ahead of his car. Mr. Lynch testified that he took his foot off the gas when he saw the boys. He further testified that after seeing the boy farthest on the left cross to the right side of Route 302, out of the corner of his eye, he saw Cain turn into the highway. The jury could have found that Mr. Lynch jammed on his brakes when he became aware of Cain's crossing the highway, and that he was unable to stop quickly enough before colliding with Cain's bicycle. The jury also could have found from Cain's testimony that he saw the defendant's car when he was halfway across Route 302, but that instead of turning back, Cain chose to continue across the road.

In support of their position that Mr. Lynch was negligent in hitting Cain, the plaintiffs cite cases from other jurisdictions which hold that defendant motorists who strike children are negligent as a matter of law. The plaintiffs in effect are urging this court to adopt a theory of strict liability in cases involving collisions between motorists and children. However, since 1956 this court has limited its application of strict liability for damages to cases involving consumers of unreasonably dangerous and defective products. Bagley v. Controlled Environment Corp., 127 N.H. 556, 559, 503 A.2d 823, 825 (1986). Moreover, we have held that "a motorist is not an insurer against all accidents involving injuries to children...." Ross v. Express Co., 100 N.H. 98, 100, 120 A.2d 335, 336 (1956). Instead, both the child and the driver owe each other the reciprocal duty to act reasonably under the circumstances. Shimkus v. Caesar, 95 N.H. 286, 287, 62 A.2d 728, 729 (1948); see Dorais v. Paquin, 113 N.H. 187, 188, 304 A.2d 369, 371 (1973) (child normally held to standard of care reasonable for children of like age, intelligence and experience). Contrary to the plaintiffs' position, "[t]he issues of fault on the part of each operator cannot be so simply decided as by considering only the physical possibility of vision that each had of the other.... Whether each exercised reasonable care must be determined in the discretion of the jury by all the circumstances under which each respectively acted." Shimkus v. Caesar, 95 N.H. at 287, 62 A.2d at 729. Based on the evidence presented at trial, we hold that a jury could reasonably conclude that the defendant was not negligent in the operation of his automobile, and we accordingly hold that the trial court did not err in failing to set aside the verdict on the ground that it was against the weight of the evidence.

Having concluded that the trial court did not abuse its discretion in refusing to set aside the verdict as against the weight of the evidence, we now consider whether the trial court erred in refusing to set aside the verdict on the ground that it was the product of plain mistake, passion, partiality or corruption. In Panas v. Harakis & K-Mart Corp. this court discussed a trial court's setting aside a verdict on these grounds:

"Undoubtedly, it is possible to demonstrate that the jury made an affirmative mistake, as for example, by rendering internally inconsistent findings that...