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Miller v. Trans Oil Co.

Decided: November 17, 1954.

CALVIN MILLER, PLAINTIFF-APPELLANT,
v.
TRANS OIL CO., A CORPORATION, AND JOSEPH SZABO, DEFENDANTS-RESPONDENTS, AND CHARLES SZABO, DEFENDANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

This is an auto accident case, raising a question of evidence. The question is this: did the trial court err in admitting the testimony of a witness, Richard Hollyer, that perhaps a minute before the accident and about three-quarters of a mile away from it, he was passed by a car which he described as "similar" to the plaintiff's car and which was then proceeding toward the scene of the accident at a speed quite a bit faster than 45 miles per hour? A verdict of no cause for action was returned. Plaintiff appeals. We are concerned only with the objections raised in the trial court as to this evidence.

Plaintiff was driving his black Oldsmobile at night north on Route 25 in Woodbridge, N.J., when it hit defendant's trailer in the rear as the tractor-trailer, which also had been going north, endeavored to make a left turn off the highway. Hollyer, likewise bound north in his car, arrived at the place of the accident, perhaps a minute or so after being passed by the car above mentioned. In fact his was the first northbound car to stop at the accident.

No question is raised as to the admission of a lay opinion on the matter of speed and identity. Gretowski v. Hall Motor Express , 25 N.J. Super. 192, 196 (App. Div. 1953); 7 Wigmore, Evidence (3 d ed.), § 1977 et seq. But much stress is put upon the fact that Hollyer did not definitely identify the plaintiff's car. When he was asked "Why did you give the driver [of the truck] your name?," Hollyer answered "Well the car had passed me earlier." Later when cross-examined by counsel for the other side, he said "I thought it was the same car." At another point he testified that it was "similar" to plaintiff's car and that it was "a black sedan or a black closed car" -- a description applicable to plaintiff's auto. However, though he had an opportunity to see the auto, he could not testify to its make, nor could he say under oath that the car which passed him was the plaintiff's car.

On the question of plaintiff's speed at the time of the collision, there was circumstantial evidence apart from Hollyer's testimony -- including skid marks 87 feet long leading up to the place on the highway where the rear of plaintiff's car came to rest after the accident. Besides there was proof that Hollyer's car hit the 10-ton tractor-trailer so hard as not only to push it 15-20 feet westerly into the southbound lane and knock off completely its rear right wheels but also to demolish entirely the front of plaintiff's car.

Upon inspection, the question at hand breaks up into three points, and each point rests, it will be found, upon a proposition of law of a rather fundamental character. There is, first, a question as to whether testimony as to identity is admissible even though it is not definite; second, a question as to whether the speed of a car at one place is evidentiary as to its speed at another place; and, third, a question involving both identity and speed, namely, whether the testimony thereof was inadmissible because it was too remote.

The first point is that the testimony was not admissible because the car which passed Hollyer was not definitely identified by him as the plaintiff's car. But a witness's testimony may be admissible, though he is not positive. Where (as here) a witness has actually observed a fact, but there

has been some deficiency in the observation or in his recollection of it, the lack of definiteness on his part goes to the weight of his testimony, not to its admissibility. 2 Wigmore, supra , §§ 658(1), 659, 660; 3 Ibid. §§ 727, 728; see 7 Ibid. § 1977.

This is settled law in nearly all jurisdictions, and a few cases will serve to illustrate the point. Craig v. State , 171 Ind. 317, 86 N.E. 397, 400 (Sup. Ct. 1908); State v. Richards , 126 Iowa 497, 102 N.W. 439, 440 (Sup. Ct. 1905); Commonwealth v. Cunningham , 104 Mass. 545 (Sup. Jud. Ct. 1870); Commonwealth v. Kennedy , 170 Mass. 18, 48 N.E. 770, 772 (Sup. Jud. Ct. 1897); People v. Stanley , 101 Mich. 93, 59 N.W. 498, 499 (Sup. Ct. 1894); Auerbach v. United States , 136 F.2d 882, 885 (C.C.A. 6, 1943); Fryer v. Cathercole , 4 Ex. 262, 154 Eng. Rep. 1209 (Ex. 1849); L.R.A. 1918 A 713-719; 4 A.L.R. 979; cf. State v. Young , 97 N.J.L. 501, 507 (E. & A. 1922); Eberle v. Stegman , 98 N.J.L. 879 (E. & A. 1923); Gretowski v. Hall Motor Express , 25 N.J. Super. 192, 196 (App. Div. 1953), supra.

On the first point, then, the testimony of a witness may be admissible though he is not definite.

The second point has to do with the matter of relevancy, namely, whether the speed of plaintiff's auto at one place on Route 25 is evidentiary as to its speed at another place ...


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