Beaudin v. Cont'l Baking Co. Cont'l Baking Co.

• Decision Date: 23 December 1946
• Citation: Beaudin v. Cont'l Baking Co. Cont'l Baking Co., 94 N.H. 202, 50 A.2d 77 (N.H. 1946)
• Parties: BEAUDIN v. CONTINENTAL BAKING CO. et al. CONTINENTAL BAKING CO. v. BEAUDIN.
• Court: New Hampshire Supreme Court

50 A.2d 77

BEAUDIN

v.CONTINENTAL BAKING CO. et al.

CONTINENTAL BAKING CO.

v.BEAUDIN.

Supreme Court of New Hampshire.

Dec. 3, 1946.

As Modified on Denial of Rehearing Dec. 23, 1946.

Exceptions from Superior Court, Hillsborough County; Leahy, Judge.

Cross-actions on the case by Arlene D. Beaudin, administratrix of the estate of Oscar L. Beaudin, deceased, against the Continental Baking Company and another for intestate's death, and by the Baking Company against the administratrix, for property damages, as results of a collision between deceased's automobile and the Baking Company's truck.Verdicts for plaintiff in the first action and for defendant in the second action, and defendants in the first action and plaintiff in the second action bring exceptions.

Judgments on the verdicts.

Cross-actions on the case for negligence arising out of a collision between an automobile owned and operated by Oscar L. Beaudin, the deceased, and a truck owned by the Continental Baking Company and operated by Damon W. Hall.Trial by jury who returned a verdict for the plaintiff in the first action and for the defendant in the second.The defendants in the first action duly excepted to the denial of motions for a nonsuit and for a directed verdict.The plaintiff in the second action also excepted to the denial of its motions for a nonsuit and for a directed verdict in that action.The defendants also excepted to certain rulings of the Court upon questions of evidence and to the denial of its requests to charge.The questions of law raised by the foregoing exceptions were reserved and transferred by Leahy, J.They arise chiefly from the fact that immediately before the accident the plaintiff was driving on his left hand side of the road and the defendant Hall also turned to the left for the purpose, as he claimed, of avoiding a collision.Other facts are stated in the opinion.

Albert Terrien, of Nashua, for plaintiff Beaudin, administratrix.

Wyman, Starr, Booth, Wadleigh & Langdell, and L. E. Wyman, all of Manchester, for defendantsContinental Baking Co. and Damon W. Hall.

BRANCH, Justice.

In support of their argument that the verdict should be directed in their favor, the defendants seek to establish two propositions: 1, The conduct of the plaintiff's decedent in driving on the wrong side of the highway in the face of an oncoming vehicle constituted negligence as a matter of law; 2, The situation in which defendant's driver, Hall, found himself in consequence of the decedent's driving on the wrong side of the road constituted an emergency in which he had no opportunity for deliberate action and hence cannot be charged with negligence.

I.The collision between the truck operated by Hall and the sedan operated by Beaudin occurred on a comparatively straight and level section of the state highway leading from Wilton to Milford.The visibility for each driver was unimpaired for many hundreds of feet in either direction.As the Trial Court told the jury: ‘There is no question but that just before the collision of the two vehicles Beaudin was on his left side of the highway and crossed or attempted to cross to his right.’It is the claim of the defendants that this conduct ‘constituted negligence as a matter of law’ which we understand to mean constituted contributory illegality.

The statute law of the road provides as follows: ‘Section 1.Meeting Another.If a person traveling on a highway with a vehicle meets another person so traveling in the opposite direction, he shall seasonably turn to the right of the center of the traveled part of the road, so that each may pass the other without interference.’R.L. c. 106.It is, therefore, plain that the defendant's claim that Beaudin was guilty of illegal conduct as a matter of law depends, not upon whether he was on the wrong side of the road before the accident, but upon whether he seasonably turned to the right so as to allow the other car to pass without interference.This specific question was submitted to the jury by the Trial Court as follows: ‘On whether Mr. Beaudin returned or attempted to return to the proper, or his right side of the road seasonably within the meaning of the statute is for you to decide.If he did not, his estate connot recover any damages in its case and your verdict must be for the defendant.’The defendants argue that the happening of the accident refutes any possible claim that Beaudin turned seasonably to the right.This is not a necessary conclusion.The accident happened when the defendant's truck was admittedly in the left hand lane and a turn which might have been seasonable to avoid a collision with the truck if it had kept to its own side of the road was utterly useless to avoid the danger which actually developed.The statute did not require the plaintiff to turn to the right for the purpose of avoiding a collision with an approaching vehicle which turned to its left.The conflicting evidence as to the position of the two vehicles when the decedent made his turn to the right obviously created a question for the jury as to whether or not his turn was seasonable.Defendant's first contention must, therefore, the overruled.

II.The second contention is that the defendant Hall cannot be...