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Newhouse v. Phillips

Decided: April 27, 1933.

THEODORE E. NEWHOUSE, PLAINTIFF-RESPONDENT,
v.
VIOLA R. PHILLIPS, EXECUTRIX OF THE ESTATE OF HARRY PHILLIPS, DECEASED, TRADING AS PHILLIPS EXPRESS COMPANY, DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court.

For the defendant-appellant, French, Richards & Bradley.

For the plaintiff-respondent, James Mercer Davis.

Donges

The opinion of the court was delivered by

DONGES, J. Appellant's testator was the owner of a truck, operated by his servant and agent, which collided with an automobile operated by the respondent. The collision occurred at the intersection of the Burlington Pike and the Fieldsboro road in Burlington county. Trial was had at the Burlington Circuit of the Supreme Court, which resulted in a verdict by a jury in favor of respondent and against appellant, upon which judgment was entered. On this appeal from that judgment, appellant writes down nine grounds of appeal, which challenge the refusal of the trial judge to grant appellant's motion for a nonsuit, his rulings on the admission of evidence, and his charge to the jury.

The proofs in the case were susceptible of a finding that the respondent was proceeding northerly on the Burlington Pike; that when he reached the intersection of that highway with the Fieldsboro road, he put out his left hand to indicate to an automobile in his rear his intention to turn to his left into the Fieldsboro road; that he then observed a vehicle approaching from the opposite direction; that he stopped his automobile on his right side of the road, or with the left wheels of his automobile near the center line of the Burlington Pike, to afford the vehicle so approaching an opportunity to pass on his left; that the truck attempted to pass upon his left, but so close to respondent's automobile that the overhang of the truck or its cargo side-swiped respondent's automobile, carrying away the door handle and crushing respondent's forearm which was still protruding from the window of his automobile; that the truck did not proceed upon its right side of the road, but was too far to its left to admit of the two vehicles passing without collision.

The first point argued as reversible error is the refusal of the trial court to grant appellant's motion for a nonsuit, because of failure of proof of appellant's negligence and because of respondent's contributory negligence. We conclude that these questions were properly left to the jury, under the evidence adduced, and that there was no error in refusing the motion to nonsuit.

The second point argued is that the trial court erroneously sustained an objection to the attempted cross-examination of respondent as to the amount of rent he was paying for his dwelling house. We do not find in the ground of appeal the testimony and ruling referred to, and it is, therefore, not properly before us. However, the testimony set out in the appellant's brief was, in our view, properly excluded.

The third point challenges the propriety of the court's ruling in sustaining an objection to a question propounded to a witness as to whether in her written statement she had not said the accident was unavoidable by appellant and respondent, and that it was the fault of the car in back of respondent's car. This question clearly called for a conclusion of the witness. The statement was admitted in evidence, so that, in any event, appellant had all of the advantage of the witness's statement and its contents.

The next point of appellant is that the court charged the jury that certain statements (Exhibits D-1, D-2, D-3, D-4, D-5 and D-6) were not principal evidence in the case but were available only for purposes of impeachment. The court said with respect to the statements: "They are not in this case for the purpose of proving the truth of the statements contained in them; they are introduced and admitted as evidence in the case for the purpose of attacking the credibility of the witnesses who made them. * * * I repeat to you that they are not evidence of the truth of the statements contained therein, but you may take them into consideration in determining whether or not the witnesses upon the stand to-day have told the truth, in view of the fact that they made contradictory statements at some prior time."

Exhibits D-1 and D-2 were statements of the respondent, and Exhibits D-3, D-4, D-5 and D-6 were statements of witnesses. As to the statements of the witnesses the rule is that they are admissible to contradict or discredit their testimony. It is otherwise as to statements of a party.

"The declaration of any party to a cause as to the subject-matter of the controversy -- the issue in the cause -- is competent to be proven by the opposite party as a substantive ...


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