Opinion
No. 3280.
Decided October 7, 1941.
The driver of a motor vehicle owes to his passenger only the duty to protect him from perceivable or expectable risks.
Action by a passenger in a car against the owner for negligently causing a door to be opened whereby the plaintiff was thrown out. The defendant from the front seat having directed another passenger on the back seat to open the car window, who by mistake opened the door and thereby caused the plaintiff, also on the back seat, to fall out, the questions as to what factors in the situation the defendant observed or should have observed, and how much time he had to act and what due care required under the circumstances were jury issues.
CASE, by a passenger against the owner of an automobile, to recover for personal injuries sustained when he fell from the car. Trial by jury, with verdict for the plaintiff. This verdict was set aside by the Presiding Justice (Young, J.) for the reason "that there was no evidence of defendant's negligence or fault" and the plaintiff excepted.
There was evidence that on the day of the accident the defendant's automobile was being operated by plaintiff's mother, Violet Smith, as an employee of the defendant, who was seated at her right in the front seat. The plaintiff, who was referred to as David, was sitting on the forward edge of the rear seat on the left side, leaning slightly against the door and looking out of the window. Next to him was seated his grandmother, Mrs. Corliss, and his grandfather, Mr. Corliss. Shortly after passing a section of the road which was under construction, the defendant turned to his left and looking at Mrs. Corliss, said: "For Pete's sake, open the window." In attempting to carry out this direction, Mrs. Corliss took hold of the wrong lever and opened the door by mistake. The plaintiff fell from the car and was injured. Other facts are stated in the opinion.
Sewall, Varney Hartnett (Mr. Hartnett orally), for the plaintiff.
Waldron Boynton (Mr. Waldron orally), for the defendant.
It may be conceded, in accordance with the contention of the defendant, that he owed the plaintiff only the duty to protect him from "perceivable or expectable risks." Loughlin v. Johnson, 89 N.H. 191; Flynn v. Gordon 86 N.H. 198. The plaintiff, however, argues that there was evidence of the defendant's negligence in two particulars: (1) in creating a dangerous situation, and (2) in failing to take protective action after the danger became evident.
We need not consider the first of these contentions, since we think the second is well founded. There was evidence that after the defendant gave the instruction to open the window, he continued to turn to the left so that he was in a position to observe all that Mrs. Corliss did until the accident occurred. If he could have seen that her conduct endangered the plaintiff, it was his duty to stop her, provided there was time for effective action. He testified as follows: "Q. But a matter of five or ten seconds passed while you were watching and as she leaned forward to reach that lever? A . . . . yes, there must have been."
There was evidence that the lever which opened the door was located in the center thereof, while the crank which lowered the window was further to the rear but also in the door itself; that the plaintiff, as he sat forward on the rear seat, hid the window crank from a person in Mrs. Corliss' position; that Mrs. Corliss reached in front of the plaintiff and took hold of the door lever; that the door opened immediately and the plaintiff fell out. How many of these factors in the situation the defendant observed or should have observed; how much time he had to act, and what due care required under the circumstances, cannot be determined as a matter of law. These are all questions of fact as to which the judgment of the jury was final. The verdict should not have been disturbed.
Judgment on the verdict.
All concurred.