Belanger v. Berube

• Decision Date: 02 June 1936
• Parties: BELANGER v. BERUBE. COTE v. SAME.
• Court: New Hampshire Supreme Court

185 A. 898

BELANGER

v. BERUBE.

COTE

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

June 2, 1936.

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

Action by Philip Berlanger and by Charles Cote against Eugene Berube. The defendant excepted to the admission of certain evidence, to refusal of court to withdraw from jury element of damages in Belanger case, and to denial of certain of defendant's requests for instructions. Verdict was for the plaintiffs and the defendant moved to set aside the verdict as excessive. The court transferred the case to the Supreme Court without ruling the questions raised by motion and by the exceptions. New trial.

Actions on the case for negligence in the operation of an automobile, in consequence of which the plaintiffs were alleged to have been injured. Trial by jury, with verdicts for the plaintiffs.

The defendant excepted to the admission of certain evidence, to the refusal of the court to withdraw from the jury an element of damages in the Belanger case, and to denial of certain of the defendant's requests for instructions. There were other exceptions which are understood to have been waived. The defendant moved to set aside the verdicts as excessive. Burque, J., transferred without ruling the questions raised by this motion and by the exceptions. The facts appear in the opinion.

Albert Terrien, of Nashua, for plaintiffs.

Devine & Tobin and John E. Tobin, all of Manchester, for defendant.

PAGE, Justice.

The accident that caused the plaintiffs' injuries occurred at the intersection of Main and Kinsley streets in Nashua at about 11 o'clock of a misty Saturday evening in September, 1934. The plaintiffs were passengers in the defendant's car, which was being operated by the defendant in a southerly direction along Main street. A line of cars was proceeding northerly along the same street. At the point of accident, Kinsley street intersects Main street from the west, but does not cross it.

One of the northbound cars made a left-hand turn to enter Kinsley street, and the defendant made a quick stop that threw the plaintiffs forward and caused their injuries. Immediately after the defendant stopped, the two cars came into collision, but the collision does not appear to have had any share in causing the injuries complained of. There was some conflict in the testimony as to the length of time the defendant had in which to avoid collision. If the plaintiffs' witnesses were to be believed, the defendant, if reasonably watchful, might have seen the turning of the other car in season to have come to a stop less quickly. If the defendant were to be believed when he testified that the other car did not turn until within seven feet of his car, a sudden stop might have been found prudent.

(1) Subject to general exceptions by the defendant, the plaintiffs and another passenger in the defendant's car were permitted to testify that the defendant had made a quick stop at a red light at the intersection next north of the point of accident, and that the passengers had then been thrown forward; also that one of them at that time had remarked to the defendant that he would have somebody through the windshield if he did not look out.

The plaintiffs claim that this evidence was material as showing that the brakes were especially efficient and that the tendency of a quick application would be to throw the passengers forward, and that the defendant knew this. We agree. The efficiency of the brakes had already appeared independently in connection with other testimony that they had been relined recently. Taken together, the evidence tended to establish one of the circumstances in the light of which the defendant was called upon to act. If an application of the brakes shortly before had had certain results, the defendant might have anticipated similar results upon an attempt to stop suddenly. If reasonable care, measured by these circumstances, required a closer lookout than was kept by the defendant, or less speed, and the use of such care would have enabled him to apply the brakes earlier and more gently, and thus to stop without harm, causal negligence could be found.

The defendant contends, however, that the jury would be likely to infer from the defendant's conduct at the red light what his conduct was at Kinsley street. Such an inference might be warranted. Dimock v. Lussier, 86 N.H. 54, 59, 163 A. 500. But even if it were not, the testimony being admissible for some other purpose and the defendant having failed to safeguard his interests by asking for limiting instructions, he could take nothing by his exceptions. Smith v. Railroad, 87 N.H. 246, 254, 177 A. 729, and cases cited.

(2) The defendant excepted to the refusal of the court to instruct the jury as follows:

"If the driver of the northbound car intended to make a left turn into Kinsley Street, he was bound to yield the right of way to the defendant if both cars were approaching the intersection at approximately the same instant.

"The defendant had a right to assume that the driver of the northbound car would grant him the right of way if they were both approaching the intersection at approximately the same instant."

The instructions given were silent as to the question of the right of way. If the...