Opinion
Decided November 5, 1929.
Though in case for negligently colliding with plaintiff's car evidence on the part of the plaintiff to establish his due care in certain conduct prior to the collision is immaterial when no claim is made that such conduct showed contributory negligence, yet if the trial is conducted on the assumption that the defendant would rely in part upon such prior conduct as establishing the plaintiff's negligence, evidence of his due care in that regard is admissible. Travelers upon a public highway may make any use thereof which is reasonably incident to highway travel and not in conflict with the rules of the road; and parking is a recognized and common use of highways. The extent to which inquiry as to relevant facts should be allowed is discretionary with the trial court. If evidence, which when received subject to exception is not inadmissible as matter of law, later becomes wholly immaterial or material only upon a certain issue, the excepting party should move to have it excluded or limited to its proper use and in the absence of such motions a general exception to the evidence will not avail to set aside a verdict. In case for a collision of motor vehicles, evidence that the managers of the defendant corporation at a conference with the plaintiff soon after the collision did not blame him therefor is admissible as tending to prove that a counteraction commenced shortly before the trial had no merit and the fact that a report of the collision was shown to have been made to only one of the managers does not render the evidence inadmissible. In such case, testimony by one familiar with the operation of cars and present at the collision that the driver could have done nothing more than he did to avoid the collision was not exceptionable on the ground that the testimony could not aid the jury. A statement of counsel to the effect that a witness was an "honest man" was justified by the evidence.
CASE, for injuries received by the plaintiff in a head-on collision of the parties' automobiles upon Prospect street in Nashua. Trial by jury and verdict for the plaintiff.
The Memorial Hospital is situated upon the north side of said street, and has its only public entrance thereon. The street runs east and west. The collision occurred in front of the hospital and about thirty-five feet west of the intersection of said street with Dearborn street which crosses it at right angles. The plaintiff, a physician, was accustomed to make daily visits at the hospital, and usually approached by said street from the west. On his arrival, the morning of the accident, the street was clear of vehicles. Coming easterly on Prospect street he parked his car, as was his custom, at the north curb just east of the hospital entrance, facing east. There was a "no parking" sign on the south or opposite side of the street. While he was calling on his patients two other cars arriving from the east parked in front of his car, both facing west, while a third approaching from the west, disregarding the sign, parked upon the south side of the street.
Upon the departure of the plaintiff his chauffeur backed his car so as to clear the car immediately in front and swung to the right, passing southeasterly and diagonally toward the southerly side of the street. When he had proceeded about twenty feet he was in collision with the defendant's car which had come north on Dearborn street and turned westerly upon Prospect. Between curbs Prospect street is thirty-eight feet wide, a line showing a division in the asphalt being nineteen and one-half feet southerly of the northerly curbing. The evidence was conflicting whether the position of the cars at the time of the impact was north or south of this line.
The plaintiff's evidence tended to show that his car was in low gear and that he was proceeding slowly, not to exceed four miles per hour; that when his car "had got straight ahead, on the south side of Prospect street" he saw the defendant's car going north on Dearborn street at a speed of twenty-five miles per hour, and that he supposed it would continue the same course; that, instead, it swung westerly onto Prospect street and increased its speed; that the plaintiff's driver thereupon swung his car quickly to the right and came to a stop close behind the car parked upon his right which intercepted his further progress; that his left front wheel and mud guard was struck by the corresponding wheel and guard of the defendant's car; that there was room for the defendant's automobile to have passed between the plaintiff's car and the cars parked at the northerly curb, and that another car so passed while the cars remained in collision.
The defendant's evidence tended to show that its car came into Prospect from Dearborn street northeasterly of the center of the intersection, and that the collision occurred at a point north of the division line in the asphalt; that its driver slowed down to fifteen miles per hour as he entered the intersection and increased to twenty while making the turn; that as he came to a "straight away course" on Prospect street he first saw the plaintiff's car passing diagonally across his path seven or eight feet ahead of him; that he immediately threw his clutch, engaged his brake and turned slightly to his right — the momentum of his car forcing it into collision with the plaintiff's; that the plaintiff's car was wholly north of the division line, and that there was not room to pass between the plaintiff's and the other cars parked to his right.
Other facts appear in the opinion.
A bill of exceptions taken to the denial of the defendant's motion for a directed verdict, to the admission of evidence and to a refusal to set aside the verdict for error in argument was allowed by Scammon, J.
John W. Perkins and William H. Sleeper (Mr. Sleeper orally), for the plaintiff.
Warren, Howe Wilson (Mr. Howe orally), for the defendant.
Exceptions were taken to the admission of evidence of the absence of other approaches to the hospital and the presence of "no parking" sign upon the south side of Prospect street; to proof of the custom of the plaintiff and other doctors to park on the north side of said street at particular stands and irrespective of direction; and to evidence that such custom suited their convenience and promoted the prompt performance of their professional duties. It is the position of the defendant in argument that this evidence was inadmissible because the facts sought to be proved were not shown to have been known to the defendant. The question presented by these exceptions calls for an examination of the real or ostensible issues to which the evidence in question was addressed; and more particularly whether the contributory negligence of the plaintiff in the manner he parked his car was a defence, or was so regarded at the trial.
Travelers upon a public highway may make any use thereof, not in conflict with the rules of the road, which is reasonably incident to highway travel. Lydston v. Company, 75 N.H. 23, 24; Langevin v. Company, 81 N.H. 446, 447; Ahern v. Concord, 82 N.H. 246. Parking is a recognized and common use of highways. No statutory or common-law rule of the road has been suggested in argument which forbade the plaintiff to park his car in the manner he did. Neither the rules requiring the driver of a vehicle to seasonably turn to the right of the center of the traveled part of the road when meeting another traveler (P. L., c. 90, s. 1) or when he is informed that other desires to pass him (Id. s. 2), nor the rule requiring him to yield the right of way at intersections to one approaching from his right (Id. s. 3) forbid such driver to park his car upon the left at non-intersecting points of a thoroughfare. Such rules, when applicable, have reference only to persons using the highway in their relation to other travelers. Taylor v. Thomas, 77 N.H. 410, 415; Gale v. Lisbon, 52 N.H. 174, 180.
When the plaintiff arrived at the hospital there were no other vehicles upon the street. The record discloses no evidence upon which it could be found that, up to the time the plaintiff entered his car to leave the hospital, he had transgressed any rules of the road, violated any custom or infringed upon the rights of the defendant or any other traveler. On the record it would therefore seem that the only negligence of the plaintiff toward this defendant, if any, lay in his failure to use a degree of care commensurate with the danger incident to extricating his car from the situation in which he had placed it. In other words as respects the issue of the plaintiff's contributory negligence, we start at the new stage in which we find the car when the plaintiff entered it to leave the hospital. Saunders v. Railroad, 82 N.H. 476, 477.
If the defendant had disclaimed reliance upon such prior negligence of the plaintiff, or if the case had been tried on the assumption of such non-reliance, the reason why the plaintiff's car was in the position in which it was when he entered it on leaving the hospital would have been immaterial to the issue of contributory negligence. In such situation the evidence in question would have been competent only upon the issue of the defendant's care, and then only so far as it may have appeared that the defendant was chargeable with knowledge of the facts sought to be proved and was therefore required to give effect thereto in approaching and passing the locality. There was some evidence of the familiarity of the defendant's driver with the location. He knew the hospital was there and was accustomed to observe the requirement of a quiet zone. Whether, in view of the presence of the sign and the long continued practice as to parking and the opportunity such driver had for observation, he could be found on the evidence to have had knowledge thereof need not be considered.
It seems clear from the course of the trial that it was conducted on the assumption that the defendant would rely in part upon the alleged prior negligence of the plaintiff in parking on the left hand side of the street heading into traffic. Plaintiff's counsel apparently offered the evidence here in question in anticipation of such defence and so stated in some of his offers of proof. The subsequent examination of the defendant's driver by its counsel appears to have forded some justification for such a belief. This view is confirmed by the statement of the defendant's counsel here in argument, namely, "The whole point [of the evidence excepted to] was to erect a fictitious, though colorable, excuse for the plaintiff's conduct in being on the wrong side of the road. The evidence has no tendency to show a valid excuse for that conduct, and so was inadmissible."
So long as the plaintiff's negligence in parking remained an ostensible issue it was competent for the plaintiff to meet it. The question thus presented was whether he acted as an ordinarily prudent man in so parking. Upon this question the limitation of parking opportunities, the customary manner in which that limitation was met and the necessities and conveniences which prompted the custom, so far as they may reasonably have actuated the plaintiff in parking as he did, were relevant facts bearing on the excusability of his conduct. The extent to which inquiry in these matters should be allowed was discretionary with the trial justice.
It follows that when the evidence objected to was offered it was not inadmissible as a matter of law. If for any reason during the trial the evidence became wholly immaterial it was the privilege of the defendant to move to have it excluded. Or, if material only upon the issue of the defendant's conduct and it was feared that an improper use might be made of it by the jury as tending to excuse the plaintiff's alleged negligence in the operation of his car on leaving the hospital, a motion lay to limit its use. In the absence of such motion the defendant's general exceptions to the evidence do not avail it to set aside the verdict. Soucier v. Company, 77 N.H. 118, 119; Wright v. Woodward, 79 N.H. 474, 476.
The plaintiff was allowed to testify that the defendant's managers, at conferences some days after the accident, did not blame him for the collision. The ground of the defendant's exception thereto was that the evidence failed to disclose that the manager had personal knowledge of the accident. It appeared that the driver of the defendant's car had reported the accident to one of the managers immediately upon its occurrence. The evidence was apparently offered to meet the effect of a counterclaim later presented against the plaintiff for damages to the defendant's car and a counter-action therefor by a writ served about three weeks before the trial. The evidence tended to corroborate the inference of the want of merit in such claim to be drawn from the delay in its presentation and prosecution, and was therefore admissible.
The plaintiff was permitted to testify, subject to exception, that, as he observed the situation, his driver could have done nothing more than he did to avoid the collision. The plaintiff was a physician of twenty-five years of experience in practice. His testimony tended to show that he was a man of good intelligence. There was evidence that he had been the owner of cars for some considerable period, and of several different types. He had testified in some detail as to the manner in which the car was handled by his driver showing a familiarity with its operation. It cannot be said that his testimony would not aid the jury. State v. Hause, 82 N.H. 133, 136.
The want of merit in the defendant's exception to the denial of its motion for a directed verdict requires no comment.
One Goodwin, chief of police of Nashua, called by the plaintiff testified that he had made, and caused to be painted on the street and curb, the traffic signs exhibited to the jury at the view. The signs were the only public record of his action. Exception was taken to the words "honest man" in the argument of the plaintiff's counsel, referring to witnesses supporting the plaintiff's testimony, as follows: — "They come in here and testify in his behalf, honestly and fairly, such witnesses as . . . Chief Goodwin who held the position in Nashua twelve years, same man, and an efficient, honest man." No cross-examination of this witness was had. The period of his service and the subject of his testimony were undisputed, while the presence of the traffic signs on the highway was supported by other witnesses. The honesty of the witness was not an unfair inference.
Other exceptions of the defendant, not argued, have not been considered.
Judgment on the verdict.
All concurred.