(DOWNLOAD) "Yvonne Gosselin v. Alfred Lemay" by Court of Appeals of New York # Book PDF Kindle ePub Free
eBook details
- Title: Yvonne Gosselin v. Alfred Lemay
- Author : Court of Appeals of New York
- Release Date : January 03, 1931
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 58 KB
Description
The defendant argues at considerable length that the only specific ground of liability alleged in the plaintiffs declaration is a breach of the statute (P. L., c. 103, s. 11) which requires that "the driver of any motor vehicle on any highway, approaching a crossing of ways, shall slow down and keep to the right of the intersection of the centers of both ways when turning either to the right or to the left", and that the plaintiff was not entitled to go to the jury unless there was evidence to sustain this allegation. The view which we take of the evidence renders this argument nugatory, as will subsequently appear, but having regard to some of the other questions raised by the defendant it seems necessary to state that the argument is otherwise unsound. No question in regard to the pleadings appears to have been raised in the court below, and hence, the declaration has not been made a part of the record before us. The defendant is therefore in no position to take advantage of its supposed deficiencies. Even if the assertions which he now makes were sustainable, however, they would be of no avail, for it is plain that the case was tried without objection by the defendant as though all phases of his conduct were open to examination under a general allegation of negligence. Other grounds of liability were argued and submitted to the jury and it is now too late for the defendant to raise the question whether they were specifically covered by the allegations of the declaration. Under our liberal system of procedure, the declaration, if technically inadequate, may now be amended so as to conform to the proof. P. L., c. 334, s. 9; Grew v. Railroad, 83 N.H. 383; Lyman v. Brown, 73 N.H. 411; Morse v. Whitcher, 64 N.H. 591. Whether such an amendment is necessary or desirable in order to avoid an unseemly record is for the superior court to determine.
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