Greenie v. Nashua Buick Co.

• Citation: 158 A. 817
• Parties: GREENIE v. NASHUA BUICK CO.
• Decision Date: 05 January 1932
• Court: Supreme Court of New Hampshire

158 A. 817

GREENIE

v. NASHUA BUICK CO.

Supreme Court of New Hampshire. Hillsborough.

Jan. 5, 1932.

Transferred from Superior Court, Hillsborough County; Sawyer, Judge.

Action by Ella Greenie against the Nashua Buick Company. Defendant excepted to the denial of its motion for a nonsuit. Case transferred.

Judgment on the verdict.

Case for negligence in which the plaintiff seeks to recover the damages sustained by her as a result of a collision between an automobile driven by her and an automobile of the defendant driven by one Peck. The plaintiff brought separate actions against Peck and the Nashua Buick Company which were tried together by a jury with verdicts in favor of Peck and against the defendant The defendant seasonably moved for a nonsuit and excepted to the denial of this motion. The defendant also moved that the verdict against it be set aside upon the ground that it was inconsistent with that rendered in favor of Peck. This motion was denied and the defendant excepted. In the suit against Peck judgment was entered on the verdict by agreement. The foregoing exceptions were transferred by SAWYER, C. J.

The facts are stated in the opinion.

Devine & Tobin and S. A. T. Spence, all of Manchester (John E. Tobin, of Manchester, orally), for plaintiff.

Warren, Howe & Wilson, of Manchester (Robert P. Bingham, of Manchester, orally), for defendant.

BRANCH, J.

There was evidence from which the following facts might be found: The defendant had contracted for the sale of an automobile to one Peck and as a part of the transaction had agreed to teach him to drive. Peck was a man seventy-four years old who had had many years' experience in driving a Ford car "with the old shifts," but he had never operated a "gear shift car" before. On the day of the accident he went to the defendant's garage in Milford to receive instruction which one Tarbell, an agent of the defendant, undertook to give. He testified that Tarbell gave him "just theoretical instructions as to changing a gear and the brakes and the like," after which Tarbell got into the car with him and he (Peck) started out very slowly from the garage in low gear.

The highway in front of the garage, known as Elm street, is a well-traveled road and a part of the state highway system. Before reaching the roadway the automobile traversed a sidewalk eight feet wide at a very slow speed. After entering the roadway, when the front end of the car was three or four feet from the center of the street, Peck and Tarbell first noticed the plaintiff's car approaching from the right and both undertook to stop the defendant's car. Tarbell pulled the emergency brake and Peck said that he "pushed out the clutch" but "didn't get hold of the brake." The plaintiff's evidence tended to show that the defendant's car then "leaped" or "shot" ahead and collided with her machine inflicting the injuries complained of. From the admissions of Peck, made soon after the accident, which went before the jury without objection or limitation, it might be found that when he undertook to put his foot on the brake he depressed the accelerator and thus caused sudden movement of the defendant's car.

The plaintiff was driving in the middle of the road at a speed of fifteen or twenty miles per hour. She saw the defendant's car moving so slowly that she thought it was going to stop for her to pass, and therefore she did not change her course or slacken her speed before she was struck. The question of her care was clearly for the jury.

There is no evidence from which it could be found that Peck was the servant or agent of the defendant. Consequently the question of the defendant's liability turns upon the issue of Tarbell's fault, and we think that upon this issue there was evidence to go to the jury.

It is a necessary conclusion from the testimony that the actual custody and control of the automobile was in Tarbell. Peck was known by all the parties including himself to be incompetent to manage this type of motor vehicle and it was not intrusted to him. Although Peck was at the wheel, all control of the machine except the mere mechanical manipulation of it was for the time and occasion in Tarbell. It was his duty to supervise and direct the acts of Peck and the movements of the car.

In an ordinary case this would follow from the language of the statute which permits the operation of motor vehicles by unlicensed persons "while being taught to operate, if riding with or accompanied by a licensed chauffeur or operator." P. L. c. 101,§10. The purpose of this section of the Motor Vehicle Law, like that of the section which requires operators to be licensed (P. L. c. 101, § 1), is the protection of the public from the acts of incompetent drivers. Johnson v. Railroad, 83 N. H. 350, 351, 143 A. 516, 61 A. L. R. 1178. Unless the...