Opinion
No. 4394.
Argued April 5, 1955.
Decided April 20, 1955.
In the absence of a transcript of the testimony presented at the trial no question relating to the sufficiency of the evidence to support the findings made can properly be raised.
A verdict for the plaintiff was not required as a matter of law because of certain findings that the defendant did not substantially reduce the speed of his motor vehicle in entering the curve in the highway where he collided with the rear of plaintiff's vehicle, allegedly in violation of Laws 1949, c. 286, s. 2, where it was further found specifically that speed was not causal of the accident.
The admission of opinion evidence of a passenger in a motor vehicle that the driver thereof did everything he could under the circumstances to avoid the collision was not improper as a matter of law.
The preliminary question of whether the witness was qualified to render such opinion was for the Trial Court to determine in its discretion.
ACTIONS OF CASE, by Gordon Ray, individually and as father and next friend of Richard Ray, for damages resulting from a collision between an automobile owned by Gordon and operated as a bailee thereof by Richard, and that of the defendant Arthur Sanborn.
These actions tried before Scammon, justice of the municipal court of Exeter, with a view and without a stenographer, resulted in verdicts for the defendant.
The court's original written decision, and its supplemental findings and rulings, made at the request of plaintiffs, were substantially the following. The collision occurred on January 9, 1954, at about 6 P. M. on Route 101 in Exeter. It was dark, snowing and the weather conditions were icy. One Simonds traveling in a westerly direction, as were Ray and Sanborn, stopped his car on the highway to clean his windshield. Ray who was going at a speed of between 15 to 20 miles per hour was unable to stop before coming into collision with the rear of the Simonds car. Sanborn whose speed was approximately 30 miles per hour was unable to bring his car to a halt before striking the rear of the Ray automobile because of the insufficient distance between the cars when he first saw the Ray car and also because of the icy condition of the highway. The place of collision was upon a right hand curve with a posted prima facie speed of 25 miles per hour although the court found the area to be rural residential wherein the statutory speed is 35 miles per hour.
"The stopping of the motor vehicle by . . . Simonds upon the traveled way and the unavoidable collision of the motor vehicle of Gordon Ray against the Simonds' motor vehicle created a condition for which neither the plaintiff nor defendant was responsible . . . The defendant, when confronted by the existing conditions, did all which any reasonable man could be expected to do under the circumstances to avoid a collision and during the operation of his vehicle was in the exercise of due care." The court found also that the defendant did not reduce his speed substantially in entering the curve upon which the collision took place "although it is found specifically that speed was not an element or circumstance resulting in the accident."
Plaintiffs' exceptions to the verdicts, to the denial of their motion to set them aside, and for judgment notwithstanding the verdicts were reserved and transferred as were their exceptions to findings and rulings and to the admission of certain opinion evidence.
Robert Shaw (by brief and orally), for the plaintiffs.
Wiggin, Nourie, Sundeen, Nassikas Pingree and Bartram C. Branch (Mr. Branch orally), for the defendant.
There being no transcript of the testimony no question relating to the sufficiency of the evidence to support the findings made can properly be raised. Nelson v. Morse, 91 N.H. 177, 178; Willis v. Wilkins, 92 N.H. 400, 403.
It is the position of the plaintiffs, however, that although the court made a general finding that defendant was not guilty of negligence it also made certain subsidiary findings which compel a ruling of negligence as a matter of law. The court found "that the defendant did not reduce his speed substantially in entering the curve upon which the collision took place." Plaintiffs argue that due to the hazards existing at the time, darkness, reduced visibility, icy condition of the highway and the curve, the defendant thus violated the requirements of R. L., c. 119, s. 30, as amended by Laws 1949, c. 286, s. 2, and his conduct constituted causal negligence as a matter of law. Tufts v. White, 92 N.H. 158.
The court also found "that speed was not an element or circumstance resulting in the accident" or "a causal factor in the injuries sustained." Richard Ray who was traveling at between 15 and 20 miles per hour could not stop before coming into collision with the rear of the Simonds car stopped ahead of him. The defendant with a car length less in which to stop did not bring his vehicle to a halt before colliding with the Ray car. We cannot say as a matter of law that a reasonable man must find that speed was causal. It being findable that violation by the defendant of R. L., c. 119, s. 30, was not causal of the accident plaintiffs are not entitled to verdicts as a matter of law. Maiwald v. Company, 93 N.H. 276, 278; Bellemare v. Ford, 94 N.H. 38, 42; Wentworth Bus Co. v. Sanborn, 99 N.H. 5, 7.
The court, over plaintiffs' objection, admitted the testimony of a passenger in defendant's car that at the time of the accident the defendant did everything he could under the circumstances to avoid the collision. This was opinion evidence and was not improper. Sanders v. Welch Company, 92 N.H. 74, 81; Dimock v. Lussier, 86 N.H. 54, 59; Reed v. Nashua Buick Company, 84 N.H. 156, 161. The preliminary question of the qualification of the witness was for the Trial Court, as to which no abuse of discretion is apparent.
Judgments for the defendant.
All concurred.