Opinion
No. 4029.
Decided October 3, 1951.
The benefits of the emergency doctrine may not be claimed by an operator motor vehicle who created the emergency by his failure to maintain a proper lookout and to slow down his vehicle at an intersecting way. A party is not held to exactness in his estimates of time or distance. An error of judgment on the part of the plaintiff operator of a motor vehicle does not necessarily establish his contributory negligence. The extent to which rules of law shall be given specific application to the claims of the parties and the facts described by the evidence in a given case must be left to the sound discretion of the Trial Court, providing the jury is fully and correctly instructed.
CROSS ACTIONS, for negligence to recover damages resulting from an automobile collision at the intersection of Routes 16 and 16B, a few miles north of Dover, on January 29, 1948. Trial by jury with a view resulting in a verdict for the plaintiff in the case of Paradis v. Greenberg, and for the defendant in the case of Greenberg v. Paradis. Greenberg excepted to the admission and exclusion of evidence, to the denial of his motions for a nonsuit and directed verdict, to the refusal of the Court to withdraw certain issues from the jury, to portions of the argument, to the denial of certain of his requests and to portions of the charge. After the verdict he excepted to the denial of his motions to set aside the verdicts and for judgment notwithstanding the verdicts.
The accident happened around two o'clock in the afternoon of a clear day at a time when the roads were bare but snow banks were piled up along the way about five feet high. Paradis was driving a Chevrolet truck north along cement surfaced Route 16 intending to cross the intersection between this road and Route 16B. and to continue north in practically a straight line on 16B which is a black top road. The two ways intersect at a very gradual angle forming a Y with Route 16 curving from the intersection slightly to the northeast. In addition to the snow banks there was a woven wire fence, a line of telephone poles and several elm trees which obstructed somewhat the view of the drivers of each other as they approached the intersection. Greenberg was traveling south on Route 16 and the front of his Pontiac sedan came in contact with the right front mudguard of the Paradis truck. The accident happened at the northerly or Greenberg's end of the intersection. The left front wheel of the truck was on the black top of Route 16B, and the other wheels were on the cement of Route 16.
Further facts appear in the opinion. Transferred by Sullivan, J.
Cooper, Hall Cooper and John M. Brant (Mr. Burt R. Cooper orally), for Paradis.
Hughes Burns and Donald R. Bryant (Mr. Bryant orally), for Greenberg.
The defendant Greenberg's motions for a nonsuit and directed verdict, on the grounds that there was no evidence of his negligence while that of Paradis was conclusively shown were rightly denied. It was findable that Paradis slowed down, shifted into second and began to ease gradually over the middle line of the road far enough away from the point of impact so that Greenberg should have seen him do so in time to have avoided the accident. The jury were not compelled to accept Greenberg's story as to Paradis' sudden turn. They could find on Greenberg's own testimony that he saw the truck eight or nine hundred feet away and continually thereafter up to the moment of impact so that Paradis' actions gave ample warning of his intent to cross the intersection and enter Route 16B. They could also believe that Greenberg in failing to keep a proper lookout and to slow down created the emergency which he claims existed and hence deny him the benefit of the emergency doctrine. Pickard v. Morris, 91 N.H. 65, 69. Considering all the circumstances including the fact that Paradis was almost across the intersection and was entering Route 16B when he was hit we believe the issue of Greenberg's negligence was properly submitted.
It also appears that Paradis' contributory negligence was for the jury. The record shows that due to his unfamiliarity with English he spoke confusedly and contradicted himself at times. The jury saw and heard him and viewed the place where the accident happened. It was for them to resolve the inconsistencies in his testimony, to decide where he was when he began to turn across the center line, and how far away the Greenberg car was when Paradis first saw it. He is not held to exactness in his estimates of time or distance. O'Brien v. Company, 95 N.H. 79, and cases cited. The jury could believe that while the top of the truck was visible to Greenberg for a greater distance, Paradis, with obstructions to his view including snow banks, was not necessarily negligent in failing to see the car until it was some two hundred to three hundred feet away. Furthermore even though they did find he could have seen it further away than he claimed they were not forced to find him negligent. Baker v. Salvation Army, 91 N.H. 1, 3. Though he erred in judging that he had time to cross safely this error is not necessarily fatal. Roy v. Levy, 97 N.H. 36; MacKelvie v. Rice, 92 N.H. 465. He had a right to rely on Greenberg's care (O'Brien v. Company, supra) and a finding that he acted negligently in believing he could traverse the intersection safely is not compelled. Roy v. Levy, supra; Baker v. Salvation Army, supra; anno. 175 A.L.R. 1013, 1041.
Turning to Greenberg's exceptions to the refusal to grant certain of his requests, we believe for reasons already stated that the issues as to his speed and failure to keep a proper lookout were rightly before the jury. His exceptions thereto are overruled.
The Court refused to charge specifically in accordance with Greenberg's requests as to Paradis' negligence in failing to keep an adequate lookout and in driving too fast. The test to determine the worth of these exceptions is to inquire whether it is reasonably certain the jury understood from the charge that they were to consider these issues in deciding whether Paradis was at fault. See Hardiman v. Walsh Brothers, 96 N.H. 456, 461; West v. Railroad, 81 N.H. 522, 523. "The extent to which rules of law shall be given specific application to the claims of the parties and the facts described by the evidence in a given case must be left to the sound discretion of the trial court, provided the jury is fully and correctly instructed." Colby v. Lee, 83 N.H. 303, 310.
Here the Court charged generally as to the duties of both parties to use ordinary care not to endanger each other. The jury were instructed to consider all the surrounding circumstances, what each man saw, what he did and what he knew in deciding whether he had used such care. It seems on the record before us, where the parties stressed certain simple issues such as lookout and speed and were free to argue them, the Court could reasonably conclude that his charge would enable the jury to correctly apply the law to these issues.
The exception to the argument of Paradis' counsel before the jury is without merit (Moffatt v. Gale, 92 N.H. 421), and the order is
Judgment on the verdicts.
All concurred.