Sullivan v. Sullivan

• Decision Date: 04 March 1941
• Citation: Sullivan v. Sullivan, 91 N.H. 341, 18 A.2d 828 (N.H. 1941)
• Court: New Hampshire Supreme Court
• Parties: SULLIVAN v. SULLIVAN. DUGAN v. SAME.

18 A.2d 828

SULLIVAN

v. SULLIVAN.

DUGAN

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

March 4, 1941.

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

Actions of case by Mary A. Sullivan and Agnes T. Dugan against Joseph P. Sullivan for injuries sustained while riding as passengers in defendant's automobile.Trial by jury resulted in verdicts for the plaintiffs.Transferred to the Supreme Court upon the defendant's exceptions.

Judgment on the verdict.

Two actions of case for negligence, to recover for personal injuries sustained by the plaintiffs while riding as passengers in the defendant's car.Trial by jury, resulting in verdicts for the plaintiffs.Transferred by Johnston, J, upon the defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict; to the refusal of the court to grant his motion for a mistrial; to the exclusion of certain evidence; and to the denial of certain requests for instructions.

The accident happened upon June 26, 1938, at about 9 P.M. on the highway between Derry and Salem, N. H.The defendant was traveling south when his car was in collision with a roadster driven by one Hepworth.There was evidence that immediately before the accident Hepworth, driving north on the highway, turned left in front of the defendant's car for the purpose of entering a filling station and restaurant known as Mecca Grove.As soon as he saw Hepworth turning in front of him, the defendant applied his brakes and turned to the right but was unable to avoid a collision.Other facts are stated in the opinion.

Sheehan & Phinney, of Manchester (Wm. L. Phinney, of Manchester, orally), for plaintiffs.

Hughes & Burns, of Dover, and John S. Hurley, of Manchester (Walter A. Calderwood, Jr., of Dover, orally), for defendant.

BRANCH, Justice.

In support of the motions for a nonsuit and a directed verdict, the defendant argues that the testimony demonstrates that he had not more than two seconds in which to act after Hepworth started to turn across the road in front of him and that in accordance with our recent decision in Britton v. Glass, 91 N.H.—, 17 A.2d 94, this time was insufficient for anything more than instinctive action.This argument fails to give the plaintiff the benefit of the evidence most favorable to him.An eyewitness, Richardson, fixed upon a plan the point of collision, the point at which Hepworth started to turn "very gradually" across the road, and the position of the defendant's car at that time.According to his testimony, Hepworth started to turn, at a speed of not over 15 miles per hour, when he was about 75 feet south of the point of collision.The defendant was at this time 150 feet north of the point of collision with an unobstructed view of the highway.At 15 miles per hour, Hepworth would traverse the 75 feet in approximately 4 seconds, which is precisely the time it would take the defendant to traverse 150 feet at his admitted speed of 25 miles per hour.During this time the situation was open and visible to the defendant, who did nothing to avoid the accident until a collision was inevitable.The motions for a nonsuit and directed verdict were properly denied.

The motion for a mistrial was based upon the fact that the witness Richardson injected into the case the issue of Hepworth's liability insurance.During the course of a long answer to a question of defendant's counsel, the witness said: "I was sort of wondering whether to chase the car or not.I was wondering whether to turn around and chase him but it was an old car and I figured there was no insurance on the car, it wouldn't be worth my time to chase it."In support of his motion, the defendant relies upon the case of Graves v. Boston & M. Railroad, 84 N.H. 225, 227, 149 A. 70, 71, in which the plaintiff, over the defendant's objection, was permitted to read to the jury from a deposition a question and answer in which a third party denied that he carried insurance.In sustaining this exception the court said: "On all the evidence the jury might well have returned a verdict in favor of the defendant, believing that R—was responsible for the accident, and leaving the plaintiffs free to bring suit against him if they chose.The testimony objected to was an appeal to the sympathy and prejudice of the jurors, asking them in effect to find the railroad liable because R?did not carry liability insurance."Obviously this is not such a case.The reference to insurance was not made in answer to a direct inquiry of counsel but crept into the case casually in the course of a long answer which covers more than 16 lines in the printed record.The witness does not undertake to state that Hepworth in fact carried no insurance.He merely gives his guess based upon the fact that the Hepworth car was an old one.The witness was at the moment under cross-examination by defendant's counsel.Plaintiff had nothing whatever to do with the introduction of this testimony, and there is consequently no room for the argument that it was "an appeal to the sympathy and prejudice of the jurors."In short, this appears to be one of those cases referred to in Piechuck v. Magusiak, 82 N.H. 429, 135 A. 534, 535, where "the fact of insurance may incidentally and unavoidably appear" and the plaintiffs should not be penalized for the conduct of the witness over which they had no control.

The defendant's exception to the ruling of the court by which the witness French was prevented from stating what he had learned about the...