Christy v. Hammond

Urner, J., delivered the opinion of the Court. The trial of this action for personal injuries resulted in a verdict and judgment for the plaintiff, and the appeal, by the defendants, questions the rulings on certain prayers and the allowance of an amendment to the writ, titling, and declaration, to' make the name and membership of the defendant firm conform to the proof. The suit arose from an accident which was caused either by the negligence of the operator of the defendants’ motor-truck in crowding off the highway, when passing from the rear, a truck conveying the plaintiff, Or by the negligence of the driver of the latter truck in failing to' control its movement after being signaled from the passing truck to stop. There was evidence supporting each of those conflicting theories, and it is conceded that the question as to primary negligence, If considered as an independent issue, could properly be submitted to the jury.

But it is contended that a ¹⁴¹ verdict for the defendants should have been directed, as they requested, because of contributory negligence in the operation of the truck in which the plaintiff was traveling at the time of the accident. This contention is based upon the testimony of one of the plaintiff’s witnesses, who was driving towards the two trucks from the opposite direction, and who, on cross-examination, answered in the affirmative a question as to whether, when he saw the trucks “come down the road,” he “thought they were racing.” In his examination in chief, the witness had stated that he noticed the two trucks when they were about 150 yards away, and they were then “side by side,” and that, when he was about fifty yards from the defendants’ truck, it turned “short to the right” in front of the other truck, which “was knocked off or run off” the road. It is argued that the quoted testimony to the effect that the trucks appeared to be racing justifies the conclusion that the driver of the truck carrying the plaintiff was guilty of contributory negligence as a matter of law. But conceding that the act of racing on the highway would ordinarily be improper and reckless, the proof is not conclusive as to the fact of racing in this case, or as to' its causal relation to the plaintiff’s injuries.

Apart from the mere impression to which one of the witnesses testified, all of the evidence on both sides tended to prove that the trucks were not racing. There was consequently no reason to treat it as an established fact for the purposes of a prayer to withdraw the case from the jury on the ground of contributory negligence. The operator of the defendants’ truck and his assistant testified that, shortly before the accident, it had been passed from the rear and scraped by the truck in which the plaintiff was riding, and that they overtook, signaled, and turned safely in front of the latter truck for the purpose of stopping it and discussing with its occupants the damage which it had just caused. At the request of the plaintiff, the court instructed the jury that, even if they believed from the evidence “that the truck of the defendant was hit by the truck in which the plaintiff was riding” prior to the accident in which the plaintiff was injured, this circumstance afforded no justifica ¹⁴² tion or excuse for the driver of the defendants’ truck to operate it in a negligent manner, and, if they believed from the evidence “that at the time of the accident in which the plaintiff was injured, the truck of the defendants was operated negligently and as a result of said negligence”, and without any negligence on the part of the operator of the other truck, the plaintiff was injured, the verdict should be in his favor.

This prayer is criticised as involving a suggestion that the operators of the defendants’ truck were acting in a spirit of retaliation when passing and intercepting the truck by which, as they testified, the one in their charge had been damaged. In our opinion the prayer does not properly bear that interpretation. It instructed the jury in effect that the earlier accident, if it occurred, did not entitle the driver of the defendants’ truck to operate it negligently, but it made a verdict for the plaintiff depend upon a finding by the jury that the truck was in fact operated negligently with consequent injury to the plaintiff, and without any negligence in the. operation of the track of which he was an occupant. While such an instruction may not have been necessary, we see no reaso'n to regard it as prejudicial to the defendants, when considered in relation to the testimony, and the action of the court in granting it is