Long v. Leonard.

• Decision Date: 24 June 1943
• Docket Number: No. 1721.,1721.
• Citation: 32 A.2d 679
• Court: Vermont Supreme Court
• Parties: LONG v. LEONARD.

32 A.2d 679

LONG

v.LEONARD.

No. 1721.

Supreme Court of Vermont.

June 24, 1943.

Exceptions from Washington County Court; Walter H. Cleary, Judge.

Action in tort by Clement Long against Iona Leonard for alleged negligence in the operation of an automobile which struck and injured the plaintiff. Verdict for the defendant, and the plaintiff brings exceptions.

Judgment affirmed.

H. C. Shurtleff, of Montpelier, for plaintiff.

Theriault & Hunt, of Montpelier, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

BUTTLES, Justice.

This is an action in tort for alleged negligence in the operation of an automobile. Trial by jury resulted in a verdict for the defendant and the case is here on the plaintiff's exceptions. The accident out of which the action arose occurred at about 4:30 P.M. on Dec. 20, 1941. The plaintiff while walking northerly on Elm Street in the City of Montpelier, or in attempting to cross the street, was struck from the rear and injured by an automobile driven by the defendant. Snow had been plowed from the roadway and formed a bank on either side which was two feet high or more. There was a sidewalk on the easterly side of Elm Street but none on the westerly side in this locality. The plaintiff walked northerly on the sidewalk until he reached Cummings Street which comes into Elm Street from the east. He then turned into the roadway of Elm Street with the intention of proceeding therein until he reached the driveway leading to his daughter's home on the westerly side of the street some 75 feet northerly of Cummings Street. Had he continued farther north on the sidewalk it would have been necessary for him to wade through the easterly snowbank in order to cross the street to his daughter's house. The defendant and the plaintiff were the only eyewitnesses and they are not in agreement as to the details of the accident although they are agreed that the plaintiff had crossed the middle of the street when he was struck.

The plaintiff had testified that when struck by the car he was carrying a small box of oysters and a carton of crackers. Later he was asked, referring to the time of his return from the hospital four days after the accident: “As you came back, coming to your daughter's, did you notice those oysters and crackers, if so where?” Objection being interposed, plaintiff's counsel offered to show that “they were at the extreme left hand edge of the road and not in the center of the road where the defendant testified the accident took place; that the accident took place on the side of the road instead of the center.” There was some discussion during which plaintiff's counsel said: “We offer to show they were there, that they hadn't been moved by any traffic.” As stated in his brief it would seem that the plaintiff now relies in part upon the exclusion of this offer although no exception was taken until after counsel had further offered to show “that the oysters and crackers were down by the side of the road on the left hand side and not in the position the defendant said they were, and they were frozen onto the ice” and after that offer had been excluded.

If the three statements made by counsel be treated as one offer and the exception as applying thereto, then the factual basis of the third part of the offer is faulty because the defendant had not testified as stated therein but only that soon after the accident the crackers were strewn all over the street and that she didn't notice any oysters. But aside from that we find no merit in the exception. The offer to show that the oysters had not been moved must be considered an offer to show that fact by the witness who was then testifying. The discussion which followed so indicates and nothing was then said about any other witnesses. Two other witnesses did testify as to the position of the oysters shortly after the accident but they both placed them out in the snow bank and not where the offer indicated they were. It is apparent, however, that the witness was not competent to testify that they had not been moved. He had had no opportunity to observe them except immediately after the accident, and the nature of his injury and the manner in which it was received made it practically impossible for him then to observe what became of the oysters. When questioned as to this he said only that he dropped them, in response to a leading question.

The court's ruling was evidently made on the ground of remoteness since objection was taken on that ground, and it will be presumed to have been made as a matter of discretion if it could be so ruled. Slack v. Bragg, 83 Vt. 404, 412, 76 A. 148; Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 100, 96 A. 704. Questions of remoteness are largely within the discretion of the court. 31 C.J. 868; 20 Am.Jur. § 249. In order to be admissible offered evidence must not only be logically relevant but also legally relevant, that is, of a character to be deemed of probative value. In determining the admissibility of a collateral fact which is logically relevant there will be instances in which it can be ruled as a question of law, either because the offered fact was so clearly of probative value that its exclusion would be legal error, or because it was so clearly not fit to be considered that it would be legal error to admit it. Lying between these extremes are those instances admitting of discretion in receiving or rejecting the proffered evidence. Dalpe v. Bissette, 99 Vt. 179, 182, 130 A. 591. When the question is as to the admissibility of evidence of a fact as a basis of an inference that it existed at a previous or subsequent time, the true inquiry in each case is: At what point will evidence of the existence of a given fact or state of affairs cease to be probative as to its existence at an earlier or a later period? The established rule is that the court will infer that the particular fact or set of facts continues to exist so long as such facts usually, as a matter of experience, have been found to continue. The probative value will depend upon the length of time intervening and the persistent or mobile nature of the subject matter to which the inference is applied. Smith v. Martin, 93 Vt. 111, 118, 106 A. 666; Nelson v. Bacon, Vt., 32 A.2d 140. Here the length of time that had elapsed, the mobile nature of the oysters and the fact that the locus was in a city street made the question one proper to be ruled as a matter of discretion and no abuse thereof is claimed or appears.

The witness Hayford testified that shortly after the accident he made some measurements with Officer Sloan and that he then observed some oysters about under the front end of the car, which then projected from four to six feet into the snow bank. The officer testified that on that occasion he saw some oysters on the snow bank. There was no other evidence in the case about the position of the oysters after the accident. In the course of his argument to the jury the defendant's counsel said: “The claim of the plaintiff now is those oysters were in the snow bank, and wants you to infer that this car crowded him into the snow bank.” Counsel then read from the record the question...