Lambert v. Hamlin

• Citation: 73 N.H. 138,59 A. 941
• Parties: LAMBERT v. HAMLIN.
• Decision Date: 03 January 1905
• Court: Supreme Court of New Hampshire

59 A. 941

73 N.H. 138

LAMBERT

v. HAMLIN.

Supreme Court of New Hampshire. Hillsborough.

Jan. 3, 1905.

Transferred from Superior Court; Spike, Judge.

Action by Julie Lambert against Frank Hamlin. Verdict for plaintiff. Transferred from the superior court subject to exceptions by defendant to the exclusion of evidence and the argument of plaintiff's counsel. Exceptions overruled.

Case for personal injuries. Trial by jury, and verdict for the plaintiff. Transferred from the May term, 1904, of the superior court by Spike, J. The defendant's exceptions to the exclusion of evidence, and the argument of the plaintiff's counsel, are sufficiently stated in the opinion.

The plaintiff is 71 years old. When injured, on the evening of August 21, 1903, she was keeping a small store, which she rented of the defendant, and in which she sold bread, milk, etc. The negligence complained of is the defendant's failure to use ordinary care in the removal of the doorsteps while repairing the underpinning of the store, in that he did not notify the plaintiff that they had been removed. She alleges that, in ignorance of their removal, and while in the exercise of due care, she attempted to step out of doors to get a bill changed, and fell and sustained her injuries. The defendant admits removing the steps while repairing the underpinning, but claims that they were replaced before the accident occurred. He also claims that the plaintiff sustained her injuries by walking off the side of the steps while descending, and that she was intoxicated at the time.

Doyle & Lucier and Ivory C. Eaton, for plaintiff.

George W. Clyde, Henry B. Atherton, and Wason & Moran, for defendant.

BINGHAM, J. One of the issues in the case bearing upon the plaintiff's exercise of care was whether she was intoxicated when she went out of her store on the evening of August 21, 1903. The plaintiff claimed that the defendant had removed the steps over which she was to pass in going from the store, and that he was negligent in failing to inform her that he had removed them. The defendant claimed that the steps were in position, and that the plaintiff was intoxicated, and sustained her injuries by stepping off the side of the steps. The plaintiff called the defendant as a witness. He testified that the plaintiff sold beer in the store at or about the time of the accident. The plaintiff, being subsequently called in her own behalf, testified in her examination in chief, and without objection, that she never sold beer in the store. In reply to this the defendant offered to show that she had been convicted four times for selling beer, the last conviction being in 1898; that she pleaded guilty to the charges; and that during the time covered by the sales she was occupying the store. This evidence the superior court excluded, both as a matter of law and in the exercise of its discretion, and the defendant excepted. The defendant now urges (1) that the evidence offered by him was relevant and material to the issue, and (2) that, if that portion of the plaintiff's evidence which he offered to contradict was collateral and irrelevant, she ought not for that reason to be heard to object as it was testified to in her direct examination; that the rule preventing the contradiction of immaterial evidence, brought out on cross-examination for the purpose of impeaching a witness, does not apply in such a case.

1. If the evidence offered by the defendant was relevant to the issue, still it was of so remote a character as to be properly excluded by the court in the exercise of its discretion. Kendall v. Flanders, 72 N. H. 11, 54 Atl. 285; Pattee v. Whitcomb, 72 N. H. 249, 56 Atl. 459.

2. In the cases adopting the view contended for by the defendant in his second proposition, it seems to have been considered that the main reason for the rule which prevents a cross-examination upon immaterial matters, for the mere purpose of contradicting a witness, is that he cannot be presumed to come prepared to defend himself on such collateral questions, and, as this reason fails when the testimony is voluntarily given, the rule itself does not in that case apply. But as said in Blakey's Heirs v. Blakey's Ex'x 33 Ala. 611, 620: "The reason referred to is doubtless one of those on which the rule is founded, but it is not the only, or even the chief, one. The principal reasons of the rule are, undoubtedly, that but for...