La Perle v. Swanson, 3302.

• Decision Date: 06 January 1942
• Docket Number: No. 3302.,3302.
• Parties: LA PERLE v. SWANSON.
• Court: New Hampshire Supreme Court

24 A.2d 269

LA PERLE

v. SWANSON.

No. 3302.

Supreme Court of New Hampshire. Rockingham.

Jan. 6, 1942.

Transferred from Superior Court, Rockingham County; Burque and Young, Judges.

Case by Paul S. La Perle against Charles A. Swanson to recover for personal injuries and property damage sustained in a collision with defendant's automobile. Verdict for plaintiff, and case transferred on defendant's exceptions to the denial of a directed verdict, to the admission of a photograph in evidence, to the allowance of argument of plaintiff's counsel, and to the charge.

Judgment on the verdict.

Case to recover for personal injuries and property damage sustained by the plaintiff in an automobile collision with the defendant's car on February 10, 1940. Trial before Burque, C. J., and a jury, with a view. Verdict for the plaintiff. Defendant's exceptions to the denial of a directed verdict; to the admission of a photograph in evidence; to the allowance of argument of plaintiff's counsel and to the charge, were transferred by Young, J.

The essential facts are stated in the opinion.

William H. Sleeper, of Exeter, by brief and orally, for plaintiff.

Waldron & Boynton, of Portsmouth (Jeremy R. Waldron, of Portsmouth, orally), for defendant.

BRANCH, Justice.

1. The defendant argues that the plaintiff is barred from recovery by his own fault. The contention is that he drove over a frost heave at a speed of 15 to 20 miles per hour and that the frost heave caused the skid which, in turn, caused the accident. It cannot be said, as a matter of law, that the frost heave rendered a speed of 15 to 20 miles per hour excessive, and the question of the plaintiff's due care was submitted to the jury under proper instructions. The exception is, therefore, overruled.

2. The accident happened upon February 10, 1940. The plaintiff offered in evidence a photograph taken upon March 9, 1940, for the purpose of showing the frost heave in question. A witness sufficiently identified it as "a fair representation of the way it looked on this Sunday in February, the day after the accident" and there was no error in the ruling admitting it.

3. While discussing the position of the parties on the road immediately before the accident, counsel for the plaintiff argued a follows:

"Mr. Sleeper: I argue to you twelve men that it was two hundred feet up there in all probability to the place where this witness here on the front seat says that he saw that car in trouble.

"Mr. Waldron: May I object, Your Honor?

"Court: Exception noted.

"Mr. Sleeper: These are his exact words, 'I can't be sure if I was in the intersection or not, it was between the time that I rounded the curve and I just saw him I might have been a little ways before the intersection I might have been a couple of feet on the other side of the intersection, I don't know exactly where.

"'Q. Well it would be substantially at the intersection then, that it,— A. It must have been around there.

"'Q. Because two feet one side or the other would be very little? A. Well it might have been right around there?' Now that is where he placed himself when he testified the first time in Court. Right about in there. * * *

"Mr. Waldron: I object to the conclusion.

"Mr. Sleeper: I argue this to you as twelve reasonable men that it probably wasn't far from the point.

"Mr. Waldron: I understand I have an exception? "

The long answer above quoted followed testimony of the defendant as follows: "Where were you with reference to the intersection when you noticed that the LaPerle, the on-coming car, had been straightened out? A. Well probably one hundred fifty feet," and was given in answer to the following question: "Q. On which side of the intersection? * * * Where were you with reference to the center point of the area of intersection * * * when you noticed that the LaPerle car had straightened out?"

The defendant complains that in the argument above quoted: "Plaintiff's coun...