Opinion
No. 4456.
Argued March 6, 1956.
Decided March 29, 1956.
An exception to the jury charge on the applicability of a foreign speed statute, which did not direct the Trial Court's attention to the grounds advanced for sustaining it before the Supreme Court, presented no question of law.
Proffered testimony on cross-examination as to the witness' opinion on the accuracy of another's testimony which would have been no more than a mere contradiction on a collateral issue was properly excluded.
Where testimony if admitted would permit the jury to make a finding on a mere conjecture a ruling excluding it was proper.
An exception to the submission to the jury of the question of whether the motor vehicle collision was unavoidable is of no merit where the jury found by its verdicts supported by the evidence that it was not unavoidable.
So also, an exception of the plaintiff to argument of counsel on the issue of damages was unnecessary to consider where the jury in rendering its verdict for the defendant never reached this issue.
Plaintiffs' exception to the charge to the jury presented no question of law where a supplementary charge on that portion excepted to was given at his request without exception.
TWO ACTIONS OF CASE, tried together, to recover for personal injuries arising out of an automobile collision at the intersection of Routes 1 and 103 in Kittery, Maine, on August 26, 1953. Trial by jury, resulting in a verdict for the plaintiff in the action of Dorothy Winslow, a passenger, and for the defendant in that of Hope C. Winslow, operator of the automobile in which Dorothy was riding. At the close of the plaintiffs' evidence, the defendant moved for a nonsuit and at the close of all the evidence, for a directed verdict and excepted to the denial of the motions. During the trial the defendant excepted to the admission and exclusion of evidence, to the failure of the Court to give certain instructions, to portions of the charge as given, and to the refusal of the Court to withdraw certain issues from the jury. After the trial the defendant excepted to the refusal of the Court to set aside the verdict against him and grant a new trial. In the case of Hope C. Winslow the plaintiff excepted to the admission and exclusion of evidence, to the charge as given, to the refusal of the Court to charge as requested, and to the denial of her motion to set aside the verdict and order new trial. The exceptions of the losing party in each case were reserved and transferred.
The accident happened on a clear, sunny day. The plaintiff Hope was driving north on Route 1, and the defendant was traveling east on Route 103. The plaintiff stopped for a red light at the intersection of the two ways with two other cars approximately abreast of her and to her left. When the light turned green all three started ahead. There was evidence that someone screamed or shouted and the other two cars stopped. The plaintiff, who was farther out into the intersection, collided with the defendant's automobile. There was damage to her car on the left front end and to the defendant's coupe on the right door and extending back to a little beyond the center of the right rear fender. Other facts appear in the opinion. Transferred by Leahy, J.
Sleeper Mullavey (Mr. Sleeper orally), for the plaintiffs.
Wiggin, Nourie, Sundeen, Nassikas Pingree and Peter J. Bourque (Mr. Bourque orally), for the defendant.
In urging a new trial in the case of the plaintiff, Dorothy Winslow, the defendant relies mainly upon his exception to the Court's charge in respect to R.S. Maine (1944) c. 19, s. 102, I and II. This statute in substance establishes a speed limit of 15 miles per hour as being prima facie lawful when approaching within fifty feet of and in traversing an intersection when the driver's view is obstructed. There was evidence that the view was obstructed within the meaning of the statute. However, the defendant claims that this law was inapplicable at the time of the trial due to an amendment. Laws of Maine, 1953, c. 137. The amendment became law before the date of the accident and the defendant asserts it excepted from the operation of chapter 19, supra, intersections regulated by stop signs "or other control devices." The defendant concedes that the amendment was never referred to during the trial and so far as the printed record discloses, no one was aware of it. The defendant stated to the Court after the charge that he "excepts to the granting and reading by the Court of the speed statute in Maine, c. 19, speed statute, section 102, I and II." To the Court's query whether he meant the law was incorrectly quoted in the charge, counsel replied that there was no misquotation but added, "I say it is not applicable to the case." It is plain that the exception which the Court had no reason to understand referred to anything but the original statute before the amendment did not direct the Court's attention to the point now raised. Under our well established rule from which we see no occasion to depart, it cannot be considered here. Leavitt v. Benzing, 99 N.H. 193, 195, 196, and cases cited.
The defendant also excepted to the refusal of the Court to permit the plaintiff Hope on cross-examination by defendant's counsel to say whether her "son was mistaken" when he testified that she took down the names of witnesses after the accident. The question sought the witness' opinion on the accuracy of another's testimony. Had it been answered, it would only have presented a contradiction to a collateral issue, and it was properly rejected. Perley v. Roberts, 91 N.H. 254, 256.
The plaintiff, Hope C. Winslow, claims the, Court erred in excluding the testimony of a witness who arrived at the scene sometime after the accident as to alleged brake marks of the defendant's car. The plaintiff laid no foundation which would permit an inference that the marks were those of the defendant's automobile and made no offer of proof to connect them up with the accident. In this state of the record, the ruling was proper since the jury could not make a finding on mere conjecture. Cozzi v. Hooksett, 84 N.H. 530, 535.
The plaintiff Hope also claimed that the Court erred in submitting to the jury the question of whether the accident was unavoidable. It is unnecessary to determine whether the record would have sustained such a finding because the error in any event could not have prejudiced this plaintiff. The jury in returning a verdict for the passenger, Dorothy Winslow, found the defendant negligent and by their verdict in his favor in Hope's case, they found her negligent. Both findings were warranted by the evidence and since the jury found that the accident was not unavoidable, the instruction excepted to could not have affected the verdicts, and the plaintiff takes nothing by this exception. Small v. Saunders, 81 N.H. 520, 521. The same rule applies to her exception to the defendant's argument on damages since the jury never reached this issue. Cutler v. Young, 90 N.H. 203, 204.
An examination of the charge discloses that the plaintiff's requests were all given in substance which is sufficient. Paradis v. Greenberg, 97 N.H. 173. No question of law is raised by the exception to an instruction in the original charge as to which a supplementary instruction was given at the plaintiffs' request without exception. Bogrett v. Hromada, 91 N.H. 351, 354. No other exceptions of merit appearing, the order is
Judgment on the verdicts.
All concurred.