Opinion
No. 4438.
Argued January 3, 1956.
Decided February 8, 1956.
In an action to recover for personal injuries sustained by a six-year old child pedestrian when struck by defendant's motor vehicle while crossing a public highway, the issue of defendant's due care after seeing the plaintiff with other children beside the highway was properly submitted to the jury.
The evidence in such case did not require a finding as a matter of law that defendant was confronted with such an emergency by the approach of the plaintiff into the highway as to permit no time for him to take saving action.
Whether the father of a minor child six years of age was negligent in entrusting the child's custody to a fifteen-year old sister with instructions to take the child to a skating lesson, after having warned both as to safety rules in using highway where plaintiff in an attempt to cross was struck by defendant's motor vehicle, presented a question of fact for the jury.
The defendant company was held not liable as a matter of law for the negligent operation of a motor vehicle by an officer of the company while it was being driven from his home to his place of business where the vehicle was owned by him personally, registered in his name, garaged at his home and he had the exclusive right to use it for his private purposes, and although it was occasionally used on company business, the company had no control or direction over it while it was being operated by him.
ACTIONS OF CASE, brought on behalf of the plaintiff, Lita Ross, a minor six years of age, to recover damages for personal injuries and by Llewellyn C. Ross to recover consequential damages as a result of his daughter, Lita, being struck by an automobile on the Daniel Webster Highway in Bedford on March 31, 1951. The automobile was owned and operated by the defendant Robert G. Plante, who was vice president, assistant manager and director of the defendant, Robert's Express Co., Inc. Trial by jury with a view resulted in a verdict for the plaintiffs in the actions against the individual defendant, nonsuits having been granted by the Court in the actions against the corporate defendant. Plaintiffs' exceptions to the nonsuits and the individual defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict were reserved and transferred by Grimes, J.
The plaintiffs resided on the east side of the Daniel Webster Highway less than one hundred feet from the place of the accident. Lita had been left by her parents in the care of her fifteen year old sister Eleese and a fourteen year old companion Janet who had been instructed to take Lita to her roller skating lesson about an eighth of a mile north of the Ross residence. Lita's father had instructed the girls to face traffic, be careful crossing and to stay on the outer bounds of the highway leaving two full lanes for cars. There was no sidewalk and it was customary for the children in this neighborhood to use the highway. When the three girls left the Ross residence, Janet and Lita who were ahead, crossed the highway to the west side. Eleese was unable to cross the: highway because of traffic and she walked northerly on the east side while Lita and Janet walked hand-in-hand northerly on the west side. Lita suddenly turned away from Janet, faced the east side of the highway as though she were going to cross it. The evidence is in conflict as to whether she then started to walk diagonally across the highway and stopped and hesitated at the center or whether she ran across the highway.
The defendant Plante was operating his automobile at a speed of about twenty-five miles per hour and did not see Lita until he was twenty-five or thirty-five feet away. He applied his brakes and turned to the right. Lita was struck by the front center of the automobile and was thrown a considerable distance. There were skid marks over a distance of forty-two feet. The highway at the point of the accident was level and visibility was good. The evidence is in dispute as to the extent of the traffic at the time of the accident. Other facts appear in the opinion.
Craig Craig (Mr. William H. Craig, Jr. orally), for the plaintiffs.
Devine Millimet (Mr. Millimet orally), for the defendant Robert G. Plante.
Sheehan, Phinney Bass (Mr. Sheehan orally), for the defendant Robert's Express Co., Inc.
The defendant Plante argues that he was confronted with an emergency through no fault of his own and that prior to the emergency he did nothing that could be construed to be negligence. Since a motorist is not an insurer against all accidents involving injuries to children, and since there was evidence that the child, Lita, broke away from her custodian and darted in front of the motorist, the jury could have found for the defendant. However, there was other evidence favorable to the plaintiffs which justified the jury's verdict in this case. The "first thing I knew my sister had let go of Janet's hand and started to walk toward the middle of the highway, and she stopped and hesitated, and then I didn't see after that whether she went forward or not." In answer to a question whether Lita did suddenly break away from Janet and dart across the highway the witness replied, "She didn't dart." If the child walked across the highway the defendant was not confronted with the emergency that he was if she suddenly darted across the highway. Roy v. Chalifoux, 95 N.H. 321, 323. The defendant was required to be attentive after seeing the children on the side of the highway (Richards v. Company, 96 N.H. 272) and the defendant's negligence thereafter was a jury question. Martineau v. Waldman, 93 N.H. 147; LaPolice v. Austin, 85 N.H. 244.
A motorist "is not justified in assuming that a child will exercise the same degree of care for his safety as an adult would under the circumstances. . . ." 2 A Blashfield Cyclopedia of Automobile Law and Practice (perm. ed.) s. 1497. Bullard v. McCarthy, 89 N.H. 158, 162. The jury were not obligated to accept the defendant's evidence that he had no time for saving action. George v. Company, 86 N.H. 121, 122; Bullard v. McCarthy, supra; anno. 30 A.L.R. (2d) 5. The defendant contends that his due care was established as a matter of law (Miller v. Daniels, 86 N.H. 193) and relies upon the emergency doctrine. Kardasinski v. Koford, 88 N.H. 444; Bonenfant v. Hamel, 96 N.H. 228. As already indicated while there was evidence to support this contention, the evidence construed most favorably to the plaintiff presented question of fact for the jury. Robbins v. Green, 93 N.H. 384; O'Brien v. Public Service Co., 95 N.H. 79; French v. York, 99 N.H. 90. In the actions by the minor child against the individual defendant the motions for a nonsuit and a directed verdict were properly denied.
The second issue raised in this appeal is whether the plaintiff's father was negligent as a matter of law. There is considerable evidence that the father instructed the older sister as to the proper control of the minor child, Lita, when she was walking on or across the highway, and the father was not negligent as a matter of law in entrusting the custody of Lita to her older sister. Chase v. Company, 95 N.H. 483; Shirack v. Gage, 166 Kan. 719; anno. 123 A.L.R. 147. See Hoebee v. Howe, 98 N.H. 168, 174. A parent is not required at all times to watch a minor child every minute nor is he prohibited from placing him in the custody of a minor sister if she can exercise effective control over the child. Restatement, Torts, s. 496; Farrell v. Hidish, 132 Me. 57. "The negligence of a . . . custodian is ordinarily a question of fact." Marcoux v. Collins, 94 N.H. 345, 348, and cases cited. The jury's verdict establishes that Lita's custodians were found not to be negligent. McDonough v. Vozzela, 247 Mass. 552. See Restatement, Torts, s. 488, comment c.
The defendant Plante was an active officer of Robert's Express Co., Inc. The automobile involved in the accident was being driven by Plante from his home to his place of business. It was owned by him personally, registered in his name, garaged at his home and he had the exclusive right to use it for his private purposes, although it was occasionally used on the corporation's business. The corporation had no control or direction over the automobile while Plante was operating it.
The plaintiffs concede that the nonsuits in their actions against the corporation are proper if the rule enunciated in McCarthy v. Souther, 83 N.H. 29, is to be followed. It was the ruling of that case that an employer is liable for the employee's torts in highway accidents only if the employer had control over the employee as to the operation and management of the automobile. See Marshall v. Nugent, 222 F.2d 604, 614 (construing New Hampshire law). The doctrine of the McCarthy case was extended to its limits on the factual situation in Hutchins v. Insurance Company, 89 N.H. 79. The argument may be made that the rule established by these cases, which is a minority rule, is less satisfactory in its application to modern business than it appeared to be when it was announced about thirty years ago. 140 A.L.R. 1150; 28 Mich. L. Rev. 365; 32 Mich. L. Rev. 276. But the evidence in the case before us failed to establish the corporation's liability under the majority rule. In the circumstances no reason is presented to consider whether the requirement of control with respect to the details of the operation of an automobile should be dispensed with as a prerequisite to liability of the employer. Accordingly it is unnecessary to determine whether the rule in the McCarthy and Hutchins cases should be reconsidered and the plaintiffs' exceptions to the nonsuits in the actions against the corporation are overruled.
Judgment on the verdicts.
All concurred.