Supreme Court of New Hampshire HillsboroughJan 5, 1949
95 N.H. 321 (N.H. 1949)
95 N.H. 32163 A.2d 226

No. 3780.

Decided January 5, 1949.

The negligence of the defendant was for the jury where with nothing to obstruct his view he so operated his motor vehicle that its front and rear wheels ran over the plaintiff child at a crosswalk without seeing the child and without knowledge of having run over it until called to his attention by a witness to the accident. A motion to withdraw from the consideration of the jury certain evidence of medical expert because the symptoms he described in a child following injury in an accident were as consistent with the child's home environment as with an accident was properly denied where the symptoms he described first appeared just after the accident and could reasonably be inferred to have resulted more probably from the accident. It was proper upon cross-examination to ask the defendant if there was any obstruction to his view in the direction from which the child, his vehicle ran over, could have come although there was no evidence it came from that direction, where the claim of the plaintiff was predicated upon negligent inattention in all directions. A jury verdict of $2,500 awarded to a child whose body had been run over by both the front and rear wheels of a motor vehicle and who suffered a fracture of the wrist was not excessive as a matter of law where prior to the accident the child was in good health but following it the child suffered from night walking, wetting the bed, crying spells and constipation.

CASE, for the negligent operation of an automobile on October 29, 1946, at the intersection of Commercial and Temple Streets in Nashua. The action of Gloria Roy, who was a child four years old at the time of the accident, sought to recover damages for personal injuries. That of the mother Simonne Roy was brought to recover consequential damages. The defendant's automobile as he drove slowly northerly on Commercial Street was first seen by Mrs. Dorilda Haggerty, the sole witness of the accident, if we except the defendant driver who did not see the child until he had passed over her and she lay to the rear of his car, when the automobile was about 75 feet from the crosswalk extending from the southwesterly to the southeasterly corner of the intersection. Mrs. Haggerty stood at the former corner waiting for the car to pass. Commercial Street ended at this intersection, and the defendant intended to turn to his right in Temple Street.

Trial by jury with a view. Verdicts of $2,500 and $340 were returned for the child and her mother, respectively. The defendant excepted to the denial of his motions for a nonsuit and for a directed verdict in each action, to the denial of his motions to set aside the verdicts because against the law and the evidence and to the denial of his motion to set aside the verdict of $2,500 because excessive. The defendant also excepted to the denial of his motion to strike the testimony of one of the plaintiffs' medical experts and to a ruling permitting certain cross-examination of the defendant.

All questions of law raised by the above exceptions were reserved and transferred by Lampron, J.

Albert Terrien (by brief and orally), for the plaintiffs.

Robert W. Upton and William D. Tribble (Mr. Tribble orally), for the defendant.

Mrs. Haggerty testified that, after she yelled to the defendant and told him that he had run over a little girl, he stopped and the child (hereinafter called the plaintiff) then lay on the crosswalk right in the middle of Commercial Street. According to her, both left wheels passed over the child. Concerning obstructions to the defendant's view this witness said in evidence: "Q. Was there any car ahead of it [the defendant's automobile]? A. I didn't see any. Q. Is your eyesight good? A. Yes. Q. If there had been a truck ahead of this car, would you have seen it? A. Yes, I would have. Q. You saw no car ahead of it? A. No. . . . Q. Was there anything to interfere with the vision of that driver as he came up that street? A. No, there wasn't." Commercial Street was 30 feet wide between curbs and there was no other vehicle in the street either to the right or the left of the defendant, either moving or stationary. The sidewalk on the east side of the street was six feet and one inch wide. The motions for nonsuits, for directed verdicts and to set aside the verdicts because against the law and the evidence were properly denied. Robbins v. Green, 93 N.H. 384; Martineau v. Waldman, 93 N.H. 147; LaPolice v. Austin, 85 N.H. 244.

An expert neurologist and psychiatrist, who had not treated the plaintiff, testified on direct examination concerning certain conditions, to which he said the accident contributed. These symptoms were night-walking, wetting the bed, and the occurrence of terrifying dreams and of crying spells. On cross-examination the expert conceded that the symptoms were as consistent with a condition brought about by the environment as described to him in which the child was brought up as with an accident. The defendant then moved that the testimony of the expert be stricken on the ground that the effects stated in testimony were just as likely to be due to causes for which the defendant was not responsible as to the accident and that accordingly the testimony was speculative. It is not entirely clear what the doctor meant on cross-examination in giving his opinion concerning the plaintiff and the effect upon her of the accident suffered. However that may be, in view of the facts that the symptoms first appeared immediately after the accident and the child was in good health prior thereto and the further fact that the symptom of doubling up and clutching her stomach when crying was such in nature that it might reasonably be inferred even by laymen to have resulted from the automobile passing over that part of her body rather than from environment in general, the motion to withdraw the evidence from the jury was properly denied. Demers v. Flack, 88 N.H. 184.

The defendant excepted to the ruling that permitted plaintiff's counsel to ask the defendant whether he knew of any reason why he couldn't have seen her, if a child came along from the right. Since Mrs. Haggerty did not see the child before she was run over, it could reasonably be inferred that the child came from the opposite corner on the easterly side of Commercial Street. Moreover, the plaintiff's position at the trial was that the defendant was negligently inattentive whether the child came from either direction on the crosswalk. In view of this claim it was proper cross-examination to ask whether there was any obstruction to the view ahead either to the right or left of the defendant.

In the case of Gloria Roy, the defendant moved that the verdict of $2,500 be set aside on the ground that it was excessive. This motion was denied. All expenses were of course met by the verdict awarded the mother. The law for the guidance of the Trial Judge has been stated as follows: "To justify the interference of the court, the damages must be manifestly exorbitant; and so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or have been misled by some mistaken views of the merits of the case." Belknap v. Railroad, 49 N.H. 358, 371. The consideration of the defendant's motion involved questions of fact for the Judge and his decision should not be set aside unless no reasonable person would make it. Wisutskie v. Malouin, 88 N.H. 242, 246. Not only did the four year old child suffer a fracture of her left wrist but it occurred during the terrifying experience of having the left front and rear wheels of an automobile pass over her body. There was evidence that following this accident the child, who had been in the best of health prior thereto, would awaken from her sleep screaming every night down to the time of the trial December 3, 1947. During this period she suffered from night-walking, wetting the bed, crying spells and constipation. The refusal of the Judge to set aside the verdict of the jury on the ground that it was excessive was not unreasonable as a matter of law.

Exceptions overruled.

DUNCAN, J., doubted that there was evidence of causal negligence: the others concurred.