Opinion
No. 3155.
Decided May 7, 1940.
In an action for negligently injuring a child of four and a half years by striking him with an automobile as he ran across a street, judgment was ordered for the defendant in the absence of evidence that his speed was excessive or that he was not watching the road and where his view was obstructed by a truck or car and the only eye witness testified that the child darted into the street so suddenly that the defendant had no chance to prevent the accident.
Disbelief in testimony concerning particular facts does not convert such testimony into affirmative proof of contrary facts.
TWO ACTIONS OF CASE, for negligence, tried together by jury with verdicts for both plaintiffs. The first action is brought to recover for personal injuries sustained by Richard Coleman, a child, on June 8, 1937, when he was struck by an automobile owned and driven by the defendant. The other action is brought to recover the loss occasioned the child's father by reason of the accident.
Central Street in Manchester runs approximately east and west. At the time of the accident Richard Coleman (referred to in the opinion as the plaintiff) was crossing that street from north to south. The defendant was driving east.
The undisputed facts, as stated in the defendant's brief, are substantially as follows. The location of the accident was just opposite the Barrett house, so called, in the block bounded by Beacon Street on the west and by Cass Street on the east. The Barrett house was located on the northerly side of Central Street, across the street from the Coleman house where Richard Coleman lived. The Coleman house was not directly opposite but some seventy feet to the west of the Barrett house. About one hundred and fifty feet east of the Coleman house was the Gray house, so called, from which the witness Elizabeth M. Gray watched the accident. Richard Coleman, who was then four and a half years old, had come across the street from his house to a point in front of the Barrett house and just before the accident occurred had started to run home diagonally across the street. In his course he was struck by the front end of the defendant's car. Near the scene of the accident several workmen were collecting refuse in one of the city's scavenger trucks.
Transferred by Lorimer, J., on the defendant's exceptions to the denial of his motion for nonsuits and directed verdicts.
Chretien Craig, for the plaintiffs.
McLane, Davis Carleton (Mr. Carleton orally), for the defendants.
The defendant testified that the accident occurred in the narrow space between the city refuse truck, which stood at the curb on his left, and a car parked on the opposite side of the street; that he decreased his speed to fifteen or eighteen miles an hour as he entered this narrow space, and that the plaintiff appeared suddenly in front of the left fender of his car. There is nothing in his testimony to warrant the inference that he saw or ought to have seen the plaintiff in time to avoid the accident.
The witness Elizabeth M. Gray described the accident as follows: "I was sitting at the kitchen window and Mr. Barrett was on his porch across the street, and he came down from his porch to the sidewalk and, as he did, Richard ran across the street . . . . My brother-in-law's car was parked on the south side of Central Street, and just as Richard got across the street and stood beside Mr. Barrett the city truck came down and parked in front of their house to take the garbage . . . . I didn't see the truck move, but they had evidently started to move, and right then Richard darted in back of the truck, and just then the Stacy boy came through between the truck and the parked car, and then he struck Richard . . . . I ran downstairs just as fast as I could, and when I got to the street the Stacy boy was holding Richard under the arms."
When asked if she observed the speed of the defendant's car, she answered: "Well, I didn't. I really couldn't because he went right between these two cars, and after he had hit Richard he stopped almost instantly."
In reply to the inquiry, "Was Richard traveling at a pretty good rate for a youngster?" she said: "He seemed to be going quite fast, I should say." And again: "He was going right across the street, I couldn't say how fast. He was running as most youngsters do." To the question, "He darted out, you say, from behind the truck?" she answered: "From behind the truck."
The assertion of plaintiff's counsel that a child of the plaintiff's age could not run faster than three miles an hour and that it must have taken four seconds for him "to go from the north curb to the point of the impact" is unsupported by evidence.
The driver of the truck and the men working with him testified that the truck was on the south side of the street when the accident occurred and that the defendant passed to the north of the truck. Their testimony was conflicting as to whether or not a car was parked on the north side of the street opposite the truck. It was undisputed, however, that rubbish receptacles, which might have concealed the plaintiff from the defendant's view, were standing near an elm tree at the curb in front of the Barrett house.
There is no evidence that the defendant's speed was excessive or that he was not watching the road. No witness except Mrs. Gray saw the plaintiff until he was struck, and the only reasonable inference to be drawn from her testimony is that he darted into the street so suddenly that the defendant had no chance to prevent the accident.
The fact that Mrs. Gray may have been mistaken as to the position of the truck is unimportant, for even if her entire testimony were discredited, the case would still be barren of evidence tending to establish the defendant's fault. Disbelief in testimony concerning particular facts does not convert that testimony into affirmative proof of contrary facts. Zwiercan v. Company, 87 N.H. 196, 198, and cases cited.
Judgments for the defendant.
All concurred.