Opinion
No. 3161.
Decided May 27, 1940.
As to objective matters such as speed, time and distance, in regard to which a party may honestly be mistaken, he is not bound by his testimony.
Certain testimony justified a finding that after the plaintiff's car struck the of a third party in passing it, enough time elapsed to have enabled the defendant, oppositely approaching, to have avoided collision by turning to the left and going around the plaintiff's car.
A cross-examination of the plaintiff which merely elicits that he was friendly toward one of the defendants, thereby explaining his exoneration of that defendant from blame, does not contain the suggestion that the defendant carried liability insurance.
ELEVEN ACTIONS ON THE CASE, for negligence. A trial by jury, after a view, resulted in verdicts for the plaintiffs in the several actions of George and Fernande Ross against Roderique and Raymond G. Desharnais and against Burnham, and in verdicts for the defendants in all the others.
These actions arose out of an automobile accident which occurred soon after dark on the night of January 17, 1937. The plaintiffs Ross, who are husband and wife, were riding as passengers in an automobile owned by the defendant Roderique Desharnais and operated by his son the defendant Raymond Desharnais. At the time of the accident they were travelling in a southerly direction over the highway from Manchester to Derry. It was snowing, raining, sleeting and freezing at the time and the roads were covered with a mixture of wet snow, slush and ice. After leaving the outskirts of Manchester, Raymond drove to the side of the road, stopped, and wiped the snow and ice from the windshield. Almost immediately after he had started on again, and before he had shifted from low into second speed, his car and that of the defendant Fish, which was approaching from the opposite direction, side-swiped one another. The contact between them was not violent, but Raymond lost control and his car swerved across the road to its left where, partly upon the pavement and partly upon the shoulder, it was in collision with an automobile following that of the defendant Fish. This latter car was owned by the Laconia Plumbing Heating Supply Co., Inc., and it was at the time of the accident being operated upon company business by an agent of the company, the defendant Burnham. The property damages and personal injuries for which recovery is sought in these actions occurred in this second collision.
The defendants Desharnais excepted to the failure of the court to charge as requested and to the failure of the court to grant their motion for a mistrial. The defendant Burnham excepted to the failure of the court to grant his motions for nonsuits and directed verdicts. Transferred by James, J.
Further facts are stated in the opinion.
Chretien Craig (Mr. Chretien orally), for the plaintiffs Ross.
Devine Tobin (by brief), for the defendants Desharnais.
Murchie, Murchie Blandin (Mr. Alexander Murchie orally), for the defendant Burnham.
The verdicts indicate findings by the jury that the defendants Desharnais and Burnham were guilty of causal negligence but that the plaintiffs Ross and the defendant Fish were not. No question of the sufficiency of the evidence to support these findings is raised except with respect to the defendant Burnham. As to him it is contended that there is no credible evidence that he had time to do anything to avoid colliding with .the Desharnais car after it went out of control as a result of its contact with the Fish car.
The evidence with respect to the interval of time between collisions is even more confused and conflicting than usual in cases of this character and some of it is clearly incredible. But since it all relates to speed, time and distance, objective matters concerning which parties on the witness stand might honestly be mistaken, it is not binding upon them. Keck v. Hinckley, 90 N.H. 181. Detailed consideration of it would serve no useful purpose except to point out that the plaintiff, George Ross, placed the defendant Burnham several hundred feet behind the Fish car when it and the Desharnais car collided. This testimony with that given by Burnham himself provides a sufficient basis for a finding that time enough elapsed between collisions to permit him to have acted with saving effect. He testified that although he did not observe the Fish and Desharnais cars collide, he saw them pass one another "too close for comfort," apprehended that there might be an accident, saw the Desharnais car then come "right straight at" him, immediately applied his brakes and at the moment of his collision was "either stopped or practically stopped." If he had time, after realizing the impending danger, to bring his car even almost to a standstill before the collision, if the highway was not too slippery to prevent his brakes from taking effect, and if he was following the Fish car at anywhere near the distance behind it that George Ross testified to, then there must have been time, and highway conditions could not have been too slippery to have permitted him, instead of pulling to his right and stopping, to have swung to his left and gone around the Desharnais car. A finding that due care required such conduct on his part rather than what he actually did could be predicated upon his testimony that the Desharnais car came "straight at" him and did not swerve from one side of the road to the other. This feature of the case at bar distinguishes it from Morin v. Morin, 89 N.H. 206. The defendant Burnham's motions for nonsuits and directed verdicts in the actions of the Rosses against him were properly denied.
The plaintiff George Ross testified that the car in which he was riding was on its own right hand side of the road when it was in collision with the Fish car. In consequence the defendants Desharnais excepted to the refusal of the court to grant their request to charge as follows: "As to the plaintiff, George Ross, you must find that at the time of the collision with the Fish car Raymond Desharnais was on his own right hand side of the road." This request was properly denied. The doctrine of Harlow v. Leclair, 82 N.H. 506, does not apply because the above testimony of Ross relates to an objective matter about which he could honestly have been mistaken, and there was testimony from both the defendant Burnham and from the defendant Fish to the effect that the latter was driving on his own side of the road when his and the Desharnais car collided. See Watkins v. Railroad, 83 N.H. 10, 13; Barrett v. Company, 85 N.H. 33, 35; Dimock v. Lussier, 86 N.H. 54, 56; Howe v. Company, 87 N.H. 122, 125; Sarkise v. Railroad, 88 N.H. 178, 181; Jackson v. Smart, 89 N.H. 457, 458; Putnam v. Bowman, 89 N.H. 200, 204.
The defendants Desharnais also excepted to the refusal of the court to grant their motion for a mistrial. This motion was based upon certain cross-examination of the elder Desharnais to the effect that his family and that of the plaintiff George Ross were good friends. The contention is advanced that, although there was no direct mention of insurance, this testimony was introduced for the purpose of showing that the actions of the Rosses against the Desharnais were friendly ones and so by inference were brought only because the latter were insured.
Throughout the trial the plaintiffs Ross testified in such a way as to indicate clearly that they did not consider the driver of the car in which they were riding to blame for either collision. The testimony elicited on the above cross-examination explains the reason for this attitude on their part. If in addition it might also suggest that the liability of the owner of the Desharnais car was covered by insurance, the suggestion is so veiled that it cannot be said that the jury must have understood it. Woodman v. Peck, 90 N.H. 292.
Judgments on the verdicts.
All concurred.