Osgood v. Maxwell

• Decision Date: 02 November 1915
• Citation: 95 A. 954
• Parties: OSGOOD v. MAXWELL.
• Court: New Hampshire Supreme Court

95 A. 954

OSGOOD

v. MAXWELL.

Supreme Court of New Hampshire. Hillsborough.

Nov. 2, 1915.

Transferred from Superior Court, Hillsborough County; Branch, Judge.

Action by Anson S. Osgood, administrator of Elphege Demers, deceased, against William H. Maxwell. "Verdict for defendant.

Exceptions to argument of the defendant's counsel and to instructions to the jury, the facts relating to the latter exception being stated in the opinion. The plaintiff's intestate, Elphege Demers, a boy 5 years old, while sliding with his elder brother on a double-runner down Dean street in Manchester, and around the corner into Canal street, collided with the defendant's automobile and was killed. Just before the collision the automobile was proceeding in a southerly direction down Canal street and was approaching Dean street on the westerly and right-hand side of Canal street. It appeared in evidence that Joseph Dionne, a boy 12 or 13 years old, was standing near the corner of Dean and Canal streets, in a position to see the collision; that he had been sliding with Donat Demers, brother of the deceased, before and on the day of the accident, and walked home with him after it happened; and that he was in the courtroom with Donat on the first day of the trial, when the plaintiffs case was being introduced. It was Dionne who was referred to in argument by the defendant's counsel as follows:

"It appears in this evidence, according to Miss Fortin, that there was a boy who walked home with Donat after this accident happened. She was at the corner at the time of the accident-right there on the corner. She saw him afterward and found out who he was. That boy was Donat's playmate. That boy was here in this courtroom yesterday with Donat. That boy is just as capable of telling you the facts of this case as any one. If anything could have been told you to help Donat, that buy would have been put on the stand by the plaintiff."

To the foregoing remarks the plaintiff excepted. Exceptions overruled.

Osgood & Osgood, of Manchester, for plaintiff. Taggart, Burroughs, Wyman & McLane, of Manchester, for defendant.

PLUMMER, J. Arguments like the one to which exception was taken in this case are frequently made when a party fails to place upon the stand a seemingly available witness. The inference in such case is that the testimony of the witness would be unfavorable or of no value to the party failing to call him, and comments to that effect are legitimate and proper. Mitchell v. Railroad, 68 N. H. 96, 116, 34 Atl. 674; Lambert v. Hamlin, 73 N. H. 138, 59 Atl. 941, 6 Ann. Cas. 713.

The plaintiff especially objects to the following words: "That boy is just as capable of telling you the facts of this case as any one." The plaintiff says that there was no evidence to warrant this statement. It appears that the boy, who was in the courtroom when the plaintiff's evidence was being introduced, stood near the corner of Dean and Canal streets. When the accident occurred he was in full view of it, and was not merely a casual bystander, but was a playmate of the boys involved in the accident, and, presumably being a boy of normal faculties, it is probable that he saw the accident and could have told about it. The form of the statement is not objectionable. Where an inference can properly be drawn, the conclusion may be stated as a matter of fact. Lord v. Railway, 74 N. H. 295, 298, 67 Atl. 639. If the statement objected to had not been warranted, it was not of such a character as to render the trial unfair to the extent that the verdict should be set aside. The plaintiff had the closing argument; and, had he thought that this statement of the defendant was likely to influence the jury against him, he could have destroyed its effect by replying that the defendant apparently knew all about this boy that was in a position to see the accident, and if his testimony would have aided him he would undoubtedly have called him as a witness.

The court instructed the jury, in substance, that it was for them to find whether the plaintiff's intestate was sliding upon a street in the thickly settled portion of the city to the danger of travelers; if he was, his conduct was illegal; and if this illegal sliding caused the accident, or partly caused it, the plaintiff could not recover. This instruction was repeated with this addition: That the plaintiff could not recover "unless, after the danger of the collision became imminent and known to the driver of the car, he could have avoided the accident by the...