L'Esperance v. Sherburne

• Decision Date: 07 April 1931
• Parties: L'ESPERANCE v. SHERBURNE (three cases).
• Court: New Hampshire Supreme Court

155 A. 203

L'ESPERANCE

v. SHERBURNE (three cases).

Supreme Court of New Hampshire. Merrimack.

April 7, 1931.

Transferred from Superior Court, Merrimack County.

Two actions on the case by Arthur L'Esperance and one by Rita L'Esperance against Frederick D. Sherburne, to recover damages for negligence in an automobile collision. Trial by jury, and verdicts for the plaintiffs. Transferred by Matthews, J., upon the defendant's exceptions to the denial of his motions for nonsuits and for directed verdicts, to the admission of evidence and to the charge.

New trial.

The facts are stated in the opinion.

Demond, Woodworth, Sulloway & Rogers and Jonathan Piper, all of Concord, for plaintiffs.

O'Connor & Saidel and M. Saidel, all of Manchester, for defendant.

PEASLEE, C. J.

The automobile accident which is the basis of these suits occurred in Hooksett, on the Daniel Webster highway. For convenience the driver of the plaintiffs' car, Arthur L'Esperance, is spoken of as the plaintiff. He was traveling south, the defendant north. The defendant, in turning his car west to enter the driveway to a house on that side of the road, came into collision with the plaintiff's car. There was evidence that this occurred on the westerly half of the macadam surface of the road.

I. The defendant's claim that there was no evidence of his liability is clearly unfounded. Without detailing the evidence, it is enough to say that it would have warranted findings of negligence on the part of both, or one, or neither of the drivers.

II. The jury were instructed in part as follows:

"There is another statutory provision which provides that 'if a person traveling on a highway, with a vehicle meets another person so traveling, in an opposite direction, he shall seasonably turn to the right of the center of the traveled part of the road so that he may pass the other without interference'.

"It further provides that if a person violates this latter statute he shall be liable to a fine and in addition thereto shall be liable for the damages occasioned thereby; but no action for such damages shall be sustained unless begun within one year.

"This accident happened on November 8, 1920, and the suits were not brought until July 24, 1928. Mr. L'Esperance, therefore, cannot base any claim to damages upon a violation of this particular statute, but that does not deprive him of his right to recover damages for the violation of other provisions of the statute or for negligence. But you are entitled to consider the statutory provision upon the question of the negligence of both drivers."

These instructions informed the jury that the statute quoted therein was applicable to the situation of the parties. It is not entirely clear just what use of the statute they permitted the jury to make. But they at least intimate that the defendant's act in entering upon the left-hand lane for the purpose of leaving the highway upon that side was a violation of the law. This was error. The statute regulates the acts of those meeting and passing one another on the highway. It makes no reference to conduct when the route of one lies across that of the other. It contemplates a situation where, if the statute is obeyed, there cannot be a collision because their paths never meet. In this case their paths of necessity crossed, and the rule that inch should keep off the other's right of way cannot be applied.

This is, in substance, the construction put upon the statute in Brooks v. Hart, 14 N. H. 307, 310: "By the terms 'seasonably, turn, drive,' &c, is meant, we think, that the travellers shall turn to the right in such season that neither shall be retarded in his progress, by reason of the other occupying his half of the way which the law has assigned to his use, when he may have occasion to use it in passing. In short, each has the undoubted right to one half of the way, whenever he wishes to pass on it; and it is the duty of each, without delay, to yield such half to the other."

Recent legislation demonstrates the soundness of the foregoing conclusion as to the legislative intent. If the defendant had been bound to yield the right of way to the plaintiff, he would have been equally bound, if, instead of merely turning, he had been approaching from the east upon a road crossing that traveled by the plaintiff. But the act of 1923 (Laws 1923, c. 78, § 1, Tub. Laws 1926. c. 90, § 3) imposes that duty upon him. This act was wholly superfluous if the then existing statutory law of the road covered the situation, and its enactment is, in substance, a legislative declaration that the earlier statute does not apply.

But it is argued that, even upon the foregoing interpretation of the statute, it still bad applicability to the situation of the parties in the determination of the issue of their care. The argument seems to be that, because of this statute, the rights of the traveler who purposes to continue along on the right-hand side are superior in law to those of the one proposing to turn to his left and go of that road; and that the through traveler has, because of the statute, a right to assume that the other is also going straight on. Neither position can be sustained.

This statute does not undertake to regulate the conduct of the parties when their Ways cross, and it does not give to either of them any superior right at the junction of their ways. And if the statutory rule for conduct of meeting travelers gives each the right to assume that the other will obey the law, that assumption lias no direct application to the situation which is not within the statute, and where there has been no violation of the statute. It gave the plaintiff no right to also assume that, if the defendant was about to turn into the driveway, he would keep on the right side of the road. Nor did knowledge of this statute and the practice under it afford any ground for an assumption that no one would wish to exercise his right to cross from right to left to enter premises there adjacent.

It is probably true that not one car in a thousand going north on this busy thoroughfare would make the turn. But no one approaching from the other direction could tell in advance which approaching north-bound traveler was the exception to the general course of travel. The statute merely gives added assurance that the conduct of the through traveler may be relied upon to keep the opposite lane clear. It neither adds to nor takes from the probability that some traveler will not be of that class, but will wish to make the turn.

It may be that the fact that the left-hand lane is usually left free for the use of the on-coming traveler calls for added vigilance on the part of one who is about to use it in crossing. And to reinforce the argument it may be proper to call attention to the statute to show how definite the rule for through travel is. But this is only a method of proving the circumstances under which the defendant acted. It merely shows the surrounding facts in view of which his care or negligence in the exercise of his right to cross is to be ascertained.

As applied to his own conduct, the law of the road admonishes the traveler to keep to the right as he goes ahead. It may also be said to call for caution when he turns across the left track, upon the ground just stated.

As applied to his anticipation of the conduct of others, it may have materiality in justifying the inference that they will keep to the right, unless they have occasion to cross.

All this is but the application to a concrete situation of the abstract rule that one must use reasonable care under the circumstances. The rule applied to both parties. The plaintiff was bound to know that the defendant might have a purpose to turn, and it was his duty to keep a reasonable lookout for action to that end. So, too, the defendant was bound to give timely warning of his purpose and to exercise his right with due care. The comparative infrequency of his act might in reason call for more vigilance than the rule of due care would demand under other circumstances.

As already indicated, the unviolated law of the road has only a remote bearing on the care of the respective parties. Whether the instructions given permitted a different use of the statute as a rule governing their rights need not be determined, as the verdict is set aside on another ground.

III. The defendant was a resident of Massachusetts, duly licensed there to operate an automobile during the year 1926. His car was registered in that state for a like period. The evidence was conflicting as to whether he had operated the car in this state, under such permits, more than twenty days (Pub. Laws 1926, c. 100, § 22) in that year before the date of the accident.

Subject to exception, the jury were instructed that, if they found against him on that issue, they were to conclude that he was in fault, and that the plaintiffs could recover, in the absence of proof of contributory fault.

In Johnson v. Railroad, 83 N. H. 350, 143 A. 516, 61 A. L. R. 1178, it was held that the act of driving a motor vehicle by an unlicensed person, if causal, is a private wrong rendering the driver accountable for damage caused thereby. In the case at bar the question is presented whether one licensed under the laws of another state is subject to the same liability. The answer is to be found in a consideration of the reasons which led to the conclusion as to an unlicensed driver, and the legislative recognition of the assurance of fitness which a foreign license affords.

The person licensed to drive by another state is treated in the statute as one sufficiently certified to be competent. He may drive his duly registered car in this state for twenty days. Pub. Laws 1926, chapter 101, § 12; c. 100, § 22. And if he operates under a neutral zone registration, he may do so continuously throughout the year without any local license. Pub. Laws 1926, c. 100, § 28; chapter 101, § 12.

These provisions plainly...