Sweeney v. Willette

• Decision Date: 29 April 1954
• Parties: SWEENEY v. WILLETTE.
• Court: New Hampshire Supreme Court

Page 398

104 A.2d 398

98 N.H. 512

SWEENEY v. WILLETTE.

Supreme Court of New Hampshire.

Argued March 3, 1954.

Decided March 31, 1954.

Rehearing Denied April 29, 1954.

Rich & Burns, Berlin, and Upton, Sanders & Upton, Concord, Frederic K. Upton, Concord, for plaintiff.

Hinkley & Hinkley, Lancaster, Jean L. Blais, Berlin, Walter D. Hinkley, Lancaster, for defendant.

KENISON, Chief Justice.

The plaintiff requested that the jury be permitted to view the cab of the truck. The defendant objected that the condition of the truck had so far changed since the accident that a view by the jury would give them an erroneous impression of the amount of space inside the cab. The Presiding Justice, after examining the truck, noted that it was then in a rather dilapidated condition but permitted a view because 'the court feels that the jury can get a general idea of the width of the seat and the inside of cab generally.' The defendant concedes that the granting or denial of a jury view is discretionary with the Trial Court but argues that it was an abuse of discretion to allow it in this case. Both statute and judicial decisions confirm the discretionary nature of a view. R.L. c. 395, § 21; State v. Langelier, 95 N.H. 97, 58 A.2d 315; IV Wig.Ev., 3d Ed., § 1164. In this state 'it has not been the practice' to disturb the Trial Court's exercise of its discretion unless it appears that the ruling was plainly wrong. Lydston v. Rockingham County Light & Power Co., 75 N.H. 23, 26, 70 A. 385; State v. Cote, 95 N.H. 108, 111, 58 A.2d 749. Cf. Panagoulis v. Philip Morris & Co., 95 N.H. 524, 68 A.2d 672. The jury had the benefit of photographs of the truck taken the day after the accident and a plan drawn to scale of the driver's seat and dashboard as they existed at the time of the accident. Under those circumstances, there was no error in allowing the view. IV Wig.Ev., 3d Ed., supra, § 1163.

One of the plaintiff's minor sons was in the military service and his testimony at the first trial, while he was attending a seminary, was read to the jury. At this trial objection was made to the question, 'Who is taking care of your tuition and board?' Subject to exception his answer that the Bishop of the Diocese was paying his tuition and board was allowed to stand. The defendant now claims that was evidence of poverty and therefore irrelevant and prejudicial. Reliance is placed on cases where new trials have been granted because counsel in argument to the jury directly or indirectly referred to the poor pecuniary condition of a plaintiff or a defendant. Caverhill v. Boston & M. Railroad, 77 N.H. 330, 91 A. 917; McDonnell v. Merrill, 79 N.H. 379, 109 A. 264; Chapman v. Town of Lee, 80 N.H. 484, 119 A. 440; Dziedzic v. Newmarket Mfg. Co., 82 N.H. 472, 136 A. 261. The plaintiff relies on O'Malley v. McGillan, 86 N.H. 186, 187, 165 A. 279, and Woodman v. Peck, 90 N.H. 292, 7 A.2d 251, 122 A.L.R. 1402, where evidence which might indirectly suggest poverty was considered admissible under the circumstances of the case as explanatory of the plaintiff's condition and conduct after the accident. See annotation 122 A.L.R. 1408; Maravas v. American Equitable Assur. Corporation, 82 N.H. 533, 542, 136 A. 364. The authorities relied upon by the plaintiff and the defendant state the law in this state and are not in conflict. Their application to this case is dependent in part on the manner in which the evidence was introduced and the grounds upon which objection was made to its introduction.

In the first trial this evidence was admitted without objection. In this trial the objection was general without claim that the evidence suggested poverty or was prejudicial. No request was made for an instruction against the possible misuse of the evidence and it was admitted generally. O'Malley v. McGillan, supra. The cost and extent of the higher education the child was receiving was material as bearing on the probable contribution that the deceased would have made. Cf. Hackett v. Boston & M. Railroad, 89 N.H. 514, 6 A.2d 139. The evidence also explains circumstances which might otherwise discredit the plaintiff's own claim of impaired earning capacity as a result of the accident. The evidence that payment was made by another was not unduly prejudicial as a matter of law even though it could have been excluded by the Trial Court as a discretionary matter if objection had been made on that ground during the trial. Mudgett v. Emerson, 67 N.H. 234, 30 A. 343. The defendant's exceptions to the admission of the evidence are overruled.

A garage mechanic testified that the distance between the defendant's truck and the automobile of the plaintiff after the collision was about 30 feet. On cross-examination the witness was asked if he was generally familiar with the standards laid down by the Motor Vehicle Department as to stopping distances and whether he had found those standards satisfactory. He answered yes to both questions. During further cross-examination he testified that at 35 miles an hour the truck should stop within 86 feet. Objection to the evidence of stopping distances was made because it assumed normal conditions and did not take into account that in this case there had been a violent collision. Humphreys v. Ash, 90 N.H. 223, 6 A.2d 436. The evidence was admitted and the Presiding Justice stated that 'of course the jury can take into consideration the fact that there was a collision there.' The witness was qualified, the evidence was found to be of probable aid to the jury and therefore the testimony was admissible. Danos v. Manchester Coal & Ice Co., 94 N.H. 200, 201, 49 A.2d 926; Carbone v. Boston & Maine Railroad, 89 N.H. 12, 20, 192 A. 858.

During plaintiff's argument to the jury it was stated that if the marks on the highway made by the defendant's truck 'were the right wheels of that truck, the left side of the truck was over the center of the road at the time when those marks were made.' The road was 27 feet 4 inches wide, making each lane 13 feet, 8 inches in width. The defendant undertakes to demonstrate from the record that this argument is not true. He places his truck as traveling on its side of the center of the highway by various...