Merton W. Davis, Admr. v. Henry Raymond

• Decision Date: 07 January 1931
• Citation: 152 A. 806,103 Vt. 195
• Parties: MERTON W. DAVIS, ADMR. v. HENRY RAYMOND
• Court: Vermont Supreme Court

152 A. 806

103 Vt. 195

MERTON W. DAVIS, ADMR. v. HENRY RAYMOND

Supreme Court of Vermont

January 7, 1931

November Term, 1930.

Witnesses---Competency---Discretion of Court---Opinion Evidence as to Comparative Visibility on Two Dates---General Exception---Requisite to Admissibility of Evidence as to Experiment Concerning Visibility---Discretion of Trial Court as to Admissibility of Evidence of Experiment.

1. Witness' competency is for determination of court.

2. When status of evidence fairly tends to sustain court's ruling as to witness' competency, it is not reviewable.

3. Admission of opinion of witness who was in charge of United States Weather Bureau in certain city, where he had been stationed for ten years, as to comparative condition of visibility, in that city on two certain dates, taking into consideration weather conditions appearing in evidence, held without error.

4. Objection that experiment to test visibility of certain objects in immediate vicinity where accident occurred was made at different hour of night, and under entirely different circumstances and conditions than those existing at time of accident, held too general.

5. Admissibility of evidence of experiment to test visibility of certain objects in immediate vicinity of place of accident does not depend upon exact similarity of conditions, it being sufficient if similarity is enough to make them essentially the same.

6. In cases involving question of admission of experiments as to visibility in immediate vicinity of place of accident, much must necessarily be left to discretion of trial court, and its action will not be disturbed unless manifestly wrong.

ACTION OF TORT for wrongful death under G. L. 3315. Plea, general denial. Trial by jury at the September Term, 1929, Chittenden County, Sherburne, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Raymond Trainor and Paul Gilioli for the plaintiff.

M G. Leary and Guy M. Page for the defendant.

Present POWERS, C. J., SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.

OPINION

SLACK

This action is brought by the personal representative of Merton John Davis, deceased, for the benefit of his next of kin in accordance with the provisions of G. L. 3315. Verdict and judgment were for the defendant, and the case is here on plaintiff's exceptions.

The accident out of which the suit grows happened in the city of Burlington on what is known as Shelburne Road near the junction of South Union and St. Paul Streets, about 6.45 o'clock in the evening of March 31, 1927.

It appears from a plan introduced in evidence by the plaintiff and the evidence of the engineer who made it, that South Union Street is east of St. Paul Street and that Shelburne Road is practically a continuation south of these two streets; that the construction of the street where South Union and St. Paul Streets intersect is such that the south end of the tract of land that lies between them is "U" shaped instead of "V" shaped; that two hundred and twenty-one feet south of the curb at the junction of these streets, and on the east side of Shelburne Road, near the curb, is a water cap; that this water cap is in front of the Finney House, so-called; that the south side of this house is about eighteen feet south of the water cap; that one hundred and twenty feet north of the water cap, measuring on the east curb of the street, is an electric street light. This light, as we understand the plan, is over the street, about seventeen feet from the east curb, and in nearly a direct line between the place where plaintiff's witness Buxton was when he claims to have seen the intestate and the place where he located the latter.

Buxton testified that on the evening of the accident he was on the sidewalk at the junction of South Union and St. Paul Streets; that he traveled south along South Union Street to the junction and turned the corner into St. Paul Street; that just before he made the turn he saw a boy on a tricycle near the curb on the east side of Shelburne Road near the Finney House, or a little south of it; and a car south of the boy; and that both were coming toward him. He testified further that as he was going around the corner he saw the light of a car flash on the trees and turned around and saw a car in the ditch on the west side of the street near a chestnut tree, and later discovered a boy and tricycle in front of the car.

For the purpose of laying a foundation for the admission of the evidence of persons who made a test of the visibility of certain objects in the immediate vicinity of where the accident occurred about 9 o'clock in the evening of October 6, 1927, the defendant called as a witness one Frank Hartwell who testified that he was in charge of the United States Weather Bureau at Burlington; that he had been connected with the Weather Bureau since 1901, and with the Burlington station for the last ten years; that his record showed that the sun set at 6.18 the night of the accident; that it was cloudy that night, and in his judgment would be rather dark at 6.45; that at the time the tests were made, the sky was clear, the moon in the first quarter, and that it set just after midnight. He also testified that it was his business to study weather conditions, visibility, etc., and that he was "pretty closely in it at all times"; that he was doing that "sort of work all the time"; that he made observations for visibility for the records and in so doing observed the conditions of light and darkness and that he had driven a car for the last fifteen years, day and night; that he had knowledge based upon his training and experience concerning the effect of the moon in the first quarter upon visibility, and the effect upon visibility of cloudiness at sunset.

He was then asked: "Q. Have you an opinion, based upon that knowledge and experience as to the comparative condition of visibility of light and darkness between nine o'clock p.m. on the 6th day of October, 1927, and March 31, 1927, at about 6.45 p.m., taking into consideration the weather conditions as to which you have testified and which appear upon the records introduced here in evidence?"

and subject to the plaintiff's objection and exception answered that he had, and that there would be practically no difference.

The grounds of the plaintiff's exception were: (1) That the witness was not competent to give an opinion based on the matters assumed in the question; (2) that the conditions that existed at 6.45 p.m. March 31 were not the same as those that existed at 9.00 p.m. October 6; (3) that the leaves of the trees were different the night of the accident than they were on October 6; (4) that the electric lights did not shine the same on a moonlight night the 6th of October as they...