Lepage v. Theberge

• Decision Date: 03 June 1952
• Parties: LEPAGE v. THEBERGE.
• Court: New Hampshire Supreme Court

Page 534

89 A.2d 534

97 N.H. 375

LEPAGE v. THEBERGE.

Supreme Court of New Hampshire.

June 3, 1952.

Rehearing Denied July 1, 1952.

Hughes & Burns and Donald R. Bryant, Dover, for the plaintiff.

Charles F. Hartnett, Dover, for the defendant.

KENISON, Chief Justice.

There was sufficient evidence from which the jury could find that the defendant had failed to keep a proper and adequate lookout for traffic ahead of him on the highway. The jury were not required to accept the defendant's claim that he was blinded by lights of an approaching car seventy feet from the scene of the accident but could accept the plaintiff's testimony that this occurred three hundred feet from the scene of the accident. There was evidence that traffic could be seen four to five hundred feet away and it could be found that the defendant should have seen the truck sooner than he did if he had maintained an adequate lookout prior to the accident. Defendant stated that when the plaintiff reached into the back seat for his hat he patted the defendant's dog. It was at least arguable from the evidence that the defendant may have been observing the plaintiff's actions rather than maintaining a lookout for traffic. Motions for a nonsuit and a directed verdict were properly denied. Berounsky v. Ogden, 90 N.H. 334, 9 A.2d 510; McDonald v. Appleyard, 94 N.H. 362, 53 A.2d 434; Stanley v. Bowen Bros., 96 N.H. 467, 79 A.2d 1.

The plaintiff had been a passenger in the defendant's car most of the day. At no time did he exercise any control over its operation or was there any occasion for him to do so. The defendant's car was in good working order and there was no evidence that the defendant was an incapable operator prior to the accident. The plaintiff was entitled to rely on the assumption that the defendant would continue to be careful in his operation of the motor vehicle. On these undisputed facts there was no evidence in the case that the plaintiff was contributorily negligent in failing to keep a lookout and it was proper for the court to so advise the jury in its charge. Hoen v. Haines, 85 N.H. 36, 154 A. 129. A passenger is under no duty to maintain a lookout ahead for dangers in the absence of knowledge on his part that the driver is incompetent but is entitled to assume that the driver will act with due regard to the passenger's safety until the contrary is apparent. Mason v. Andrews, 86 N.H. 277, 279, 167 A. 156.

The trial of the case required two days but twelve days intervened between the first and second days of the trial due to illness of defendant's counsel. He moved for a further continuance and a mistrial on the grounds that the delay was prejudicial to his case, that his physical condition was not normal and a witness, who had agreed to be present, was not available. Since the plaintiff had practically completed his case, the court thought that the prejudice, if any, was more likely to affect the plaintiff rather than the defendant and denied the motions. The name and nature of the testimony of the missing witness was not made known and there was some indication that the witness may have already appeared in court and been subject to cross-examination. The discretionary denial of a continuance and a mistrial on these facts discloses no error. Hutchinson v. Manchester St. Railway, 73 N.H. 271, 60 A. 1011; 4 West's New Hampshire Digest, Continuance, page 348; Superior Court Rules 36, 37 (93 N. H. appendix).

Two witnesses testified that they could see without headlights after the accident and that the lights of their motor vehicles were not on at that time. It is urged that this evidence is vague, prejudicial and erroneously admitted. Evidence of visibility at the time of the accident and shortly thereafter had a direct bearing on the issue of negligence and was admissible whether given by a layman, a police officer or an expert. VII Wig.Ev. (3rd ed.) § 1977; Hardy v. Merrill, 56 N.H. 227, 241; II Wig.Ev. (3rd ed.) § 460. Another exception to the admission of evidence relates to a question asked the plaintiff's doctor which was objected to as leading. The discretion of the Trial Court in the admission and exclusion of leading questions is not lightly overturned in this jurisdiction. Atherton v. Rowe, 89 N.H. 196, 200, 195 A. 676. This is not a case of a series of leading questions being permitted, Rogers v. Nelson, 97 N.H. 72, 75, 80 A.2d 391, and the exception is overruled. Objection was also made to the introduction of mortality tables on the issue of damages. There was evidence that plaintiff's disability would continue beyond the date of the trial, that his head was not normal, and that the injury was of a permanent nature and that if there was to be a recovery, it would have occurred one or two years after the accident. Since there was evidence that he would suffer pain in the future from an injury of a permanent nature, the introduction of the life expectancy tables was competent. Watkins v. Holmes, 93 N.H. 53, 35 A.2d 395; Dunham v. Stone, 96 N.H. 138, 71 A.2d 412; Russell v. First National Stores, 96 N.H. 471, 79 A.2d 573.

R.L. c. 119, § 7, provides that headlights on motor vehicles shall be displayed when "operated during the...