Opinion
No. 4194.
Decided April 7, 1953.
Whether the defendant was negligent in failing to reduce the speed of his motor vehicle or to apply the brakes when it was apparent that the plaintiff pedestrian was continuing on a straight course across the highway was for the jury. The plaintiff's negligence in not looking, seeing or being aware of the defendant's approaching motor vehicle as he crossed the highway did not entitle the defendant to a nonsuit or directed verdict as a matter of law where the defendant had the last clear chance to avoid the accident. The issue of the defendant's last clear chance to avoid the accident was properly submitted to the jury where after discovering the plaintiff in obvious peril and aware of his ignorance of such peril the defendant could in the exercise of due care and in the time afforded have taken action to so control his motor vehicle that the plaintiff pedestrian would not be struck. Certain requests for instructions relating to the plaintiff's due care were properly denied where sufficient instructions had already been given on the issue.
CASE, to recover damages for the death of the plaintiff's intestate, a pedestrian, who was instantly killed when struck by an automobile operated by the defendant while crossing a highway adjacent to his home to reach his mail box. Trial by jury with a view resulted in a verdict for the plaintiff. Defendant's exceptions to the Court's charge to the jury, to the denial of certain requested instructions and to the denial of motions for a nonsuit and a directed verdict were reserved and transferred by Sullivan, J.
The accident occurred May 31, 1949, in the afternoon of a clear dry day in the town of Amherst on a heavily traveled highway at a point where both parties had a clear view of approximately 500 feet. The plaintiff's intestate, hereinafter called plaintiff, was sixty-nine years of age and the defendant was eighty-six years of age. The defendant was operating a Chevrolet sedan acquired in 1932, the brakes of which were in good condition, at an estimated speed of 35 miles an hour when he first noticed the plaintiff. At that time the plaintiff was about five feet from the highway and the defendant testified that he was 150 feet away although other testimony by the defendant indicated a greater distance. The defendant sounded his horn, put his foot on the brake but did not slow down as the plaintiff continued walking straight across the highway. The plaintiff was about three-quarters of the way across the highway when struck by the defendant who veered to the left in an unsuccessful effort "to dodge" the plaintiff. The plaintiff was hit by the left front of defendant's car which went out of control after the collision for several hundred feet before coming to a stop. Other facts appear in the opinion.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Langdell orally), for the plaintiff.
Sheehan, Phinney Bass (Mr. Sheehan orally), for the defendant.
In support of the motions for a nonsuit and a directed verdict it is argued that there is no evidence of the defendant's negligence since the defendant maintained a proper lookout, traveled at a reasonable speed, sounded his horn and made an effort to avoid the accident. The jury was not required to find such conduct to be as careful and reasonable as the defendant said it was (Owen v. Dubois, 95 N.H. 444) but if they did, it would not preclude a finding of negligence in other respects. O'Brien v. Public Service Company, 95 N.H. 79. The defendant made no attempt to reduce his speed or apply his brakes, even slightly, although it was apparent that the plaintiff was continuing on a straight course across the highway. Whether this conduct was negligent was properly submitted to the jury. Martin v. Kelley, 97 N.H. 466. Insofar as the defendant's negligence is concerned the motions were properly denied. Colburn v. Normand, 96 N.H. 250.
There was evidence of the plaintiff's contributory negligence in not looking, seeing or being aware of the defendant's approaching automobile. The record shows that (1) the defendant was actually aware of plaintiff's intention to cross the road, (2) the defendant was actually aware that the plaintiff was ignorant of his peril. Finally the jury could find that (3) due care required and time afforded an opportunity for saving action by the defendant after discovery of the situation. Thus the three essential elements of the last clear chance doctrine were present. Clark v. Railroad, 87 N.H. 36, 38. Hamlin v. Roundy, 96 N.H. 123. The "last chance doctrine is therefore available to meet the claim of his[plaintiff's] preliminary negligence in entering the danger zone as he did." LaPolice v. Austin, 85 N.H. 244, 245. The present case is unlike Davis v. Lord, 95 N.H. 237, where the pedestrian entered the highway at a point where the defendant had no reason to anticipate his approach. The denial of the motions for a nonsuit and a directed verdict on the basis of the plaintiff's contributory negligence was proper since the jury could find the defendant liable even if the plaintiff was negligent.
Error is claimed because the Court in its charge to the jury submitted the last clear chance doctrine. Specifically it is argued that the defendant did not have time or a clear opportunity to take saving action. Gaudette v. McLaughlin, 88 N.H. 368. The jury could find that if the defendant had applied his brakes, instead of merely placing his foot on the brakes, when 140 feet from the plaintiff, the accident could have been avoided. So too the defendant could have turned his automobile to his right-hand side of the highway or continued in a straight line and likewise avoided the plaintiff. Instead the defendant continued at an "accelerated" speed to his left in the direction in which the oblivious plaintiff was proceeding. Whether the defendant had the requisite time and opportunity was for the jury. Mack v. Hoyt, 94 N.H. 492; Frost v. Stevens, 88 N.H. 164; Martin v. Kelly, 97 N.H. 466. There was evidence from which they could find that he did.
Defendant's request number eight asked the Court to charge the jury that the plaintiff must take precautions for his own safety and that on failure to do so, which causes or contributes to cause the accident, there should be a verdict for the defendant. The defendant was entitled to this instruction in some form (Calley v. Railroad, 93 N.H. 359) and an examination of the charge shows it was adequately covered. Paradis v. Greenberg, 97 N.H. 173. The application of the last clear chance doctrine necessarily modified the substance of the instruction to the extent that plaintiff's failure to exercise due care was not a bar to recovery if the defendant nevertheless could have avoided the accident. Request number ten related to the specific duty of the plaintiff to look for the defendant's approaching automobile. This request was denied but the jury were instructed in sufficient detail on the plaintiff's duty to exercise due care which was sufficient. Dane v. MacGregor, 94 N.H. 294; O'Brien v. Public Service Company, 95 N.H. 79, 82. The trial of the case was free from error, and the order is
Judgment on the verdict.
All concurred.