Opinion
No. 4105.
Decided April 26, 1952.
In determining whether motions for nonsuit and directed verdicts should be granted the evidence is to be construed most favorably to the plaintiff. Where the plaintiff operator of a motor vehicle while exercising some care for his own safety collided with the rear of another vehicle parked on the highway in the nighttime with poor visibility conditions, the issue of his contributory negligence was for the jury. In such case where the evidence was conflicting, neither the plaintiff's testimony relative to distances and his speed nor the defendant's estimate of plaintiff's speed are necessarily to be accepted as true.
ACTIONS OF CASE, to recover damages for personal injuries and property damage claimed to have been sustained as the result of an accident that occurred shortly after midnight on January 17, 1948, on route 16 in Newington, New Hampshire, when an automobile operated by the plaintiff Eudore and owned by his wife, the plaintiff Madine, who was a passenger, was in a rear end collision with an automobile operated by the defendant. Trial by jury, with a view, resulting in a disagreement. Defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict in each case were reserved and transferred by Sullivan, J.
The accident occurred on a two-lane cement highway with tarvia shoulders which was wet. The visibility was poor due to fog, mist and ice. The parties to this action as welt as other motorists found it necessary to stop from time to time to clear their windshields due to the poor visibility conditions. The defendant stopped off the highway for this purpose and then started ahead slowly, driving his left wheels on the highway. While driving ahead the left rear of his car was hit by a vehicle proceeding in the same direction, driven by one Morgan, which broke the left rear taillight of the defendant's car. The Morgan car was driven ahead of the defendant's and parked off the highway with the headlights of both cars on prior to the accident. The plaintiff's evidence indicated that he was proceeding fifteen to twenty miles an hour on the cement highway, that he saw no taillights and did not see the defendant's car until six or seven feet before the impact. The plaintiffs produced two witnesses who arrived at the scene shortly after the accident, one of whom testified that all four wheels of the defendant's car were on the cement highway and the other testified that the two left wheels of defendant's car were on the highway. Defendant's evidence indicated that the right rear taillight was lighted; that the plaintiff was proceeding at a speed estimated to be forty to forty-five miles an hour and that the defendant's car was off the highway at the point of impact. Other facts appear in the opinion.
William H. Sleeper, Robert Shaw and Wayne J. Mullavey (Mr. Mullavey orally), for the plaintiffs.
Hughes Burns and Donald R. Bryant (Mr. Bryant orally), for the defendant.
This is a close case. In considering whether the defendant's motions for a nonsuit and a directed verdict should have been granted, we must follow the well established rule that the evidence is to be construed most favorably to the plaintiff. Leonard v. Manchester, 96 N.H. 115, 117; Shimkus v. Caesar, 95 N.H. 286, 287; Employers Assurance Co. v. Sweatt, 95 N.H. 31, 34. There is evidence in the case, aside from the testimony of the plaintiffs, that the defendant's car was partially or completely on the cement highway when it could have been parked on the shoulder of the road off the cement highway. This was testimony that the jury were entitled to believe and it cannot be ignored in considering the defendant's motions for a nonsuit and directed verdict. Laflamme v. Lewis, 89 N.H. 69; Putnam v. Bowman, 89 N.H. 200. While some of the defendant's evidence regarding brake and wheel marks and the inferences drawn therefrom considerably weakens the plaintiffs' testimony, there was other evidence sufficient to support their claim that the accident happened on the cement highway instead of on the shoulder of the road as testified to by the defendant's witnesses. The conflicting evidence in this case on the issue of defendant's negligence presented questions of fact for the jury under the rules laid down in the case of Sweeney v. Willette, 97 N.H. 330. See anno. 21 A.L.R. (2d) 95.
It is urged that the evidence establishes that the driver of the plaintiff's car was negligent as a matter of law. Fine v. Parella, 92 N.H. 81; Tufts v. White, 92 N.H. 158. The driver of the plaintiff's car is not held to complete exactness with respect to his testimony of speed and distance, nor is the defendant's estimate of the plaintiff's speed to be taken as true in view of the conflicting evidence. Ross v. Burnham, 91 N.H. 80, 82; MacKelvie v. Rice, 92 N.H. 465; Colby v. Avery, 93 N.H. 250, 252. "The plaintiff did not drive recklessly into a wholly blind situation as was the case in the authorities cited by the defendant." Connors v. Turgeon, 96 N.H. 479, 481. It could be found from the evidence that the driver of the plaintiff's car exercised some care which precludes a ruling that he was contributorily negligent as a matter of law. Holt v. Grimard, 94 N.H. 255, 257; Hill v. Company, 96 N.H. 14. While the conflicting evidence as to the effectiveness of the plaintiff's lookout and the reasonableness of his speed permit a finding of contributory negligence, it is not one that is required as a matter of law. The evidence was sufficient to warrant the submission of the plaintiff's contributory negligence to the jury and the order is
Exceptions overruled.
All concurred.