Opinion
No. 3256.
Decided June 25, 1941.
In case for injuries in a collision between automobiles, the fact that the plaintiff first saw the lights of the defendant's car at a point 663 feet from the point of collision does not conclusively establish the plaintiff's contributory fault where it may be inferred from his testimony that he did not realize that the defendant's car was on the westerly side of the road until he had proceeded much nearer to the car, nor discover that the car was stationary until even nearer to it.
Nor does evidence at the second trial that he may have turned his car further to the right than appeared at the first trial conclusively prove his assertion made at both trials that the wheels of a parked car were close to the center of the highway.
Though a remark to the jury might constitute an erroneous statement of the law as to parking on highways yet an objection to the remark is unavailing where the Presiding Justice has clearly stated the law applicable to parking.
No statutory or common-law rule of the road prohibits a driver from parking his automobile to the left of the center of the highway.
Leading questions are permissible within the trial court's discretion.
Admission of an answer partly irresponsive and given by a witness without comprehension of the question is not error where no claim is made of prejudice caused thereby.
The latitude allowed counsel in examining his own witness is within the discretion of the trial court.
On redirect examination explanation by a witness of his former testimony was properly allowed where the witness spoke English imperfectly.
Certain opinion evidence did not constitute an invasion of the jury's province.
A witness may be properly cross-examined as to his testimony given at a former trial.
The denial of a motion to set a verdict aside for improper argument is equivalent to a finding that the jurors were not swayed by prejudice and that the trial was fair.
CASE, to recover for personal injuries and property damage sustained on February 9, 1938, by reason of an automobile accident. Second trial by jury of the same case reported in 90 N.H. 334, where the material facts are stated in detail. Verdict for the plaintiff.
The defendant excepted to the denial of motions for a nonsuit and directed verdict, to the allowance of a remark made by plaintiff's counsel in the course of his preview statement, so called, to the admission of certain evidence, to the allowance of certain portions of the argument of plaintiff's counsel, and to the submission of a particular issue to the jury. A further exception was taken to the denial of a motion to set the verdict aside as against the law and the evidence and weight of the evidence, and because the verdict was the result of passion or prejudice.
Transferred by Burque, C. J.
Hughes Burns (Mr. Walter A. Calderwood, Jr. orally,) for the plaintiff.
Paul E. Nourie (by brief and orally), for the defendant.
The defendant contends that the evidence introduced at the second trial so convincingly demonstrates that he was free from fault and that the plaintiff was guilty of contributory negligence that the motions for a nonsuit and directed verdict should have been granted.
This contention is without merit. Evidence that the plaintiff may have turned his car farther to the right than appeared at the first trial does not prove beyond question that he was mistaken in his positive assertion, made at both trials, that the wheels of the parked car were close to the center line of the highway. Nor does the fact that the plaintiff first "took notice" of the lights of the defendant's car as he (the plaintiff) passed a signpost located 663 feet distant from the scene of the accident conclusively establish the plaintiff's contributory fault. It is a fair inference from his testimony as a whole that he did not realize that the defendant's car was on the westerly side of the road until he had reached a point considerably beyond the signpost, and that he did not discover that the car was stationary until he had approached still nearer the lights.
The jury had a view of the place where the accident occurred. In his statement preceding the view counsel for the plaintiff asked the jurors to have in mind when visiting the scene of the accident that "the Ogden car was headed northerly but on what we will call the wrong or the westerly side of the highway." Defendant's counsel moved that "that remark be stricken from the record." He did not indicate what part of the remark he deemed objectionable. The motion was denied subject to exception. Thereupon plaintiff's counsel explained that he meant that the car was on "the west side headed northerly facing traffic coming south."
It is true, as stated in the plaintiff's brief, that the left-hand side of the road is popularly referred to as the wrong side. But even if, as the defendant insists, the remark of plaintiff's counsel may be said to constitute an erroneous statement of the law which he "sought to inject into the minds of the jury," the exception remains unavailing, since the instructions of the Presiding Justice contain a clear exposition of the law applicable to parking and a definite declaration that there is "no statutory or common-law rule of the road which prohibited the defendant from parking his automobile to the left of the center" of the highway. See Voullgaris v. Gianaris, 79 N.H. 408, 409; Tuttle v. Dodge, 80 N.H. 304, 314; State v. Mannion, 82 N.H. 518, 525; Weiss v. Wasserman, ante, 164.
Many of the defendant's exceptions to the admission of evidence fall within the rule that leading questions are permissible in the trial court's discretion. Atherton v. Rowe, 89 N.H. 196, 200, and cases cited.
The defendant excepted to an answer of the plaintiff "as being irresponsive and hearsay also." It is evident that the plaintiff did not understand the question asked him, his answer was partly responsive, and it did not constitute hearsay evidence. The defendant does not indicate how he could have been prejudiced by the answer, and he made no claim at the trial that the testimony was prejudicial. The exception is overruled. See Bullard v. McCarthy, 89 N.H. 158, 160, and cases cited.
The plaintiff was allowed on redirect examination to explain his answer to a particular question. The defendant excepted on the ground that the meaning of the answer was for the determination of the jury. The plaintiff spoke very imperfect English, and it was entirely proper for the Presiding Justice to permit the specific explanation to be made. The latitude allowed counsel in examining his own witness is within the discretion of the trial court. Ford v. Ford, 89 N.H. 292, 296.
The printed record refutes in essential respects the defendant's contention that an inquiry to which he objected was based on an assumption not warranted by the evidence. Furthermore, the Presiding Justice explicitly stated that the question embodied "Just an assumption," and added: "Whether in the evidence or not, that is for the jury to decide."
The defendant excepted to the admission of certain opinion evidence as an invasion of the province of the jury. The admission of this testimony was not error. Dowling v. Company, ante, 234, and cases cited. Nor is any error apparent in the ruling of the Presiding Justice permitting plaintiff's counsel to interrogate one of the defendant's witnesses concerning his testimony at the earlier trial
Those portions of the argument of plaintiff's counsel to the allowance of which the defendant excepted were substantiated by the evidence. Moreover, in each instance but one, the statement objected to was promptly withdrawn. By denying the motion to set aside the verdict the Presiding Justice "has found that the jurors were not swayed by prejudice and that the trial was fair." Bullard v. McCarthy, 89 N.H. 158, 161, 162.
It was held on the former transfer that the case was properly submitted to the jury under the emergency doctrine. The evidence introduced at the subsequent trial was not substantially different from that originally introduced. The exception to the submission of the issue is accordingly overruled.
The exception to the denial of the motion to set aside the verdict presents no question of law not already considered.
Judgment on the verdict.
BRANCH and BURQUE, JJ., did not sit: the others concurred.