Opinion
No. 4140.
Decided November 5, 1952.
Defendant's motion for a nonsuit at the close of plaintiff's evidence was properly granted where the plaintiff failed to produce sufficient evidence to support a finding by the jury that it was more probable than otherwise that the decedent's injuries resulting in his death were caused by the negligent operation of the defendant's truck. An exception to the discretionary ruling of the Trial Court refusing to admit the testimony of certain lay experts presented no question of law for the Supreme Court.
CASE, to recover damages for the death of the plaintiff's intestate resulting from a collision at West Epping, January 17, 1948, with the defendant Lavigne's truck driven by the co-defendant LePage. Trial by jury with a view. At the close of the plaintiff's evidence the defendants' motion for a nonsuit was granted subject to exception. During the trial the plaintiff also excepted to the exclusion of evidence.
The accident happened at 8:15 on a morning with no precipitation when the visibility was good and the traveled part of the road though wet in spots was practically clear of snow. The way which is level at this point runs approximately east and west and the decedent traveling easterly was entering a slight curve to his right when the crash occurred. Each driver would have a long and unobstructed view of the other vehicle as it approached. After the collision the automobile was found on its own side of the road backed into a snowbank and headed north crosswise of the road with its front end at about the center. The truck was also on its own side, its rear end about opposite an elm tree with its rear wheels at the edge of the snowbank. It was headed southwesterly into the road and was some 60 feet west of the car. The right wheels had cut into a four foot snowbank on the truck's own side of the road at a point some twelve to fifteen feet west of where the automobile came to rest, and had continued for about forty-six feet in the snowbank before turning back onto the pavement. Some debris and muddy snow, which appeared to have dropped from the mudguards of the car, together with parts of the automobile itself, were on the plaintiff's side of the way. Some of this was located easterly of the car and some of it between it and the truck. Commencing with the left front mudguard, the entire left side of the automobile was demolished, while the left mudguard and the left front corner of the body of the truck back of the cab were damaged. Other facts appear in the opinion. Transferred by Wescott, J.
William H. Sleeper, Robert Shaw, Wayne J. Mullavey and Joel Eastman (Mr. Mullavey orally), for the plaintiff.
Paul E. Nourie (by brief and orally), for the defendant.
The main issue here is whether there is evidence in the record before us to support a plaintiff's verdict. This presents a problem which must be treated under our practice as one of law but which actually involves a difficult and troublesome question of fact. As is so often true, the legal test here is the simple one of deciding whether reasonable men could find in this case that the defendants' negligence caused or helped to cause this accident. The difficulty comes in applying this principle to the comparatively meager facts which the record discloses. It does not appear whether the driver of the truck was available at the trial or whether there were other eye witnesses, but in any event no such testimony was presented either orally or by deposition, nor do we find any explanation for its absence. We have then a situation where two vehicles, traveling at unknown speeds and otherwise operated in an unknown manner, were found after an accident, each on its own side of the way, with no brake marks or other tracks on the traveled way such as often appear as a guide to show where they came together on the road, and no one to tell what really happened. There is no direct evidence as to what either driver did or could have done to cause or to avoid this disaster. The possibilities as to what either may have done are almost limitless, but the probabilities as to what they actually did are left to the imagination. The plaintiff argues that the truck tracks entered the snowbank from the road at an angle of forty-five degrees or even sharper, and therefore the truck must have been on the wrong side of the way before it turned. Not only do the plaintiff's picture exhibits fail to support this claim, but there is no way of knowing whether, assuming the truck did get on its left side of the center, it was there before the accident or was jerked to the left afterward by the impact on its left front corner before striking the bank in an effort to regain its course. It also seems at least as likely that the debris and pieces of the automobile were hurled along with the car to the south side of the road by the collision with the much heavier truck, as that they dropped at the exact point of contact as claimed by the plaintiff. It has long been established that a lawsuit is an inquiry to discover the truth and that a jury shall decide the facts which make up this truth. It is also well settled that their determination cannot rest on guess work or imagination. Dunham v. Stone, 96 N.H. 138, 139, and cases cited. Nor can a plaintiff's verdict be sustained where it is equally probable that the injury may be due to causes for which the defendant is not responsible. Ahern v. Company, 88 N.H. 287, 291, and authorities cited. On the contrary, it must be based on evidence sufficient to give reasonable men a belief that the finding they make is probably true. We do not believe the plaintiff has produced sufficient evidence here to so convince such men and the exception to the nonsuit is overruled.
The plaintiff's final contention is that the Court erred in refusing to admit the testimony of certain lay experts. It seems sufficient to say that this presents no question for our court and the fact that similar evidence has been allowed on occasion is immaterial. Roy v. Levy, 97 N.H. 36, 37.
It follows the order is
Judgment for the defendant.
DUNCAN, J., concurred in the result: the others concurred.