Skivington v. Robinson
| Decision Date | 29 October 1965 |
| Citation | 213 A.2d 921,106 N.H. 493 |
| Parties | Richard M. SKIVINGTON v. Gerald E. ROBINSON. |
| Court | New Hampshire Supreme Court |
Paul A. Rinden, Concord, for plaintiff.
Devine, Millimet, McDonough, Stahl & Branch and E. Donald Dufresne, Manchester, for defendant.
This action arises out of a collision which occurred on Manchester Street in Concord, at the foot of Black Hill, so-called, when a taxicab operated by the plaintiff and proceeding in an easterly direction, was in collision with an automobile being operated by the defendant in the opposite direction, as the defendant sought to cross the plaintiff's lane of travel to enter a filling station on the southerly side of the street. The weather was cold, clear and dry. tHe evidence as to the condition of the road surface was conflicting. According to the plaintiff, the road was clear of ice and snow, but white with salt. In his motor vehicle report he had described the road surface as 'frosty.' At the trial he testified that the air was frosty, but conceded that the word as used in his report applied to the road surface. The defendant, in his motor vehicle report, had checked 'snow or ice' to describe the road surface, but testified at the trial: 'Actually it was frosty.'
The plaintiff's evidence tended to prove that the defendant, with an unobstructed view of the plaintiff's car, undertook without warning to cross in front of it when there was no opportunity to do so in safety. The defendant testified that his automobile 'skidded across the road' when he undertook to stop as he started to turn to his left. To this testimony the plaintiff objected 'as being precluded by the pre-trial agreement.' His counsel stated: 'The pre-trial was very explicit on this particular point in that it was agreed he was turning across the road immediately prior to the collision, and I think this violates the pre-trial agreement.' The objection was overruled and the plaintiff's exception was noted.
In support of his exception, the plaintiff relies upon Superior Court Rule 51(b), formerly Rule 48(b) (99 N.H. 615) which provides in part as follows: 'The court shall make an order which * * * when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.' He argues that the rule implies that any amendment of the pre-trial agreement shall be upon motion by the party seeking relief from the agreement; and that the absence of such a motion in this case prevented the plaintiff from raising the issue of surprise and prejudice which arose from receipt of the evidence.
We agree with the argument that one of the purposes of Rule 51(b) was to eleiminate surprise (3 Moore, Fed. Practice 3d ed., § 16.11); and that preferably any modification of a pre-trial order 'should be by direction rather than indirection,' or implication. Jenkins v. Devine Foods, Inc., 3 N.J. 450, 458, 70 A.2d 736, 740, 22 A.L.R.2d 593. See Lynch v. Bissell, 99 N.H. 473, 478, 116 A.2d 121; 6 Cyc.Fed. Proc (3d ed.) § 19.32; 3 Moore, supra, § 16.20.
If the pre-trial agreement in this case had contained a plain stipulation that skidding would not be offered as a defense, then we would reach the issue of whether pre-trial orders can be modified at the trial without formal application. As was pointed out in Nims, Pre-trial (1950) p. 159 there is no general uniformity of opinion with respect to the...
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Amabello v. Colonial Motors
...n.o.v. " 'only when his case is established by the sole reasonable inference from undisputed facts.' " Skivington v. Robinson, 106 N.H. 493, 496, 213 A.2d 921, 923 (1965). The court must construe the evidence and all reasonable inferences therefrom most favorably to the party opposing the m......
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Cutter v. Town of Farmington, 84-435
...from undisputed facts." Amabello v. Colonial Motors, 117 N.H. 556, 561, 374 A.2d 1182, 1185 (1977) (quoting Skivington v. Robinson, 106 N.H. 493, 496, 213 A.2d 921, 923 (1965)). The court entertaining the motion is required to construe both the evidence and all reasonable inferences therefr......
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Gowen v. Brothers, 80-008
...inference from undisputed facts.' " Amabello v. Colonial Motors, 117 N.H. at 561, 374 A.2d at 1185 (citing Skivington v. Robinson, 106 N.H. 493, 496, 213 A.2d 921, 923 (1965)). The jury, as the trier of fact in this case, weighed the evidence, judged the credibility of the witnesses and fou......
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Stock v. Byers, 80-063
...the plaintiff is "the sole reasonable inference from undisputed facts." Cf. id. at 561, 374 A.2d at 1185; Skivington v. Robinson, 106 N.H. 493, 496, 213 A.2d 921, 923 (1965). An essential element of the plaintiff's cause of action is thus missing, and the trial court therefore erred in not ......