Bellacome v. Bailey, 80-038

• Decision Date: 28 January 1981
• Docket Number: No. 80-038,80-038
• Citation: 121 N.H. 23,426 A.2d 451
• Parties: Ann Heath BELLACOME v. Frederick BAILEY.
• Court: New Hampshire Supreme Court

Page 451

426 A.2d 451

121 N.H. 23

Ann Heath BELLACOME v. Frederick BAILEY.

No. 80-038.

Supreme Court of New Hampshire.

Jan. 28, 1981.

Nadeau Professional Offices, Portsmouth (J. P. Nadeau, Portsmouth, orally), for plaintiff.

Calderwood, Ouellette, Hallisey & Dibble, P. A., Dover (Dennis L. Hallisey, Dover, orally), for defendant.

BOIS, Justice.

This case arises from an accident involving a pedestrian and a motor vehicle. Ann Heath Bellacome brought this action against Frederick Bailey to recover for injuries which she alleged resulted from the defendant's vehicle striking her while she was crossing a street in Dover. The issue presented on appeal is whether the trial judge's instructions misled the jury to find erroneously, and contrary to the evidence, for the defendant. We hold that the instructions were not misleading and that there was sufficient evidence to support the verdict.

On January 15, 1975, the plaintiff exited from a building on the south side of Third Street where she worked. Instead of walking east approximately forty feet to the corner of Third Street and Central Avenue to cross at a marked crosswalk, the plaintiff walked a similar distance away from the corner and then proceeded to cross the street where no crosswalk was marked. The alleged accident occurred while the plaintiff was completing her crossing. The defendant had exited from the Merchant's Bank parking lot on the north side of Third Street and was proceeding westerly in order to turn into another parking lot on the same side of the street. Although the plaintiff testified that she saw no vehicles on Third Street, she admitted seeing the defendant's vehicle stopped at the exit of the bank parking lot when she began to cross. The defendant testified that he did not see the plaintiff until a moment before his vehicle "apparently" struck her.

After a five-day trial, the jury returned a general verdict for the defendant. The plaintiff seasonably moved to set aside the verdict and for a new trial. Both motions were denied by Randall, J.

In her appeal the plaintiff argues that the charge as given was erroneous, misled the jury, and caused it to return a verdict contrary to the evidence. The jury instructions included a reading of RSA 262-A:34 I which provides that "(e)very pedestrian crossing a roadway at any point other than within a marked crosswalk ... shall yield the right of way to all vehicles upon the roadway." "The purpose of reading a statute in a charge is to provide the jury with a standard of conduct. Conduct which violates a safety regulation gives rise to liability." Arapage v. Odell, 116 N.H. 490, 493, 363 A.2d 417, 419 (1976).

In cases involving vehicular collisions, failure of one motorist to exercise due care does not relieve the other motorist of the duty to exercise reasonable care. Dumas v. MacLean, 404 F.2d 1062, 1065 (1st Cir. 1968); Grimes v. Labreck, 108 N.H. 26, 28, 226 A.2d 787, 789 (1967). Likewise, failure on a motorist's part to exercise care does not operate to absolve a pedestrian of a reciprocal duty to use care.

Accordingly, the trial judge was correct in not instructing the jury, as the plaintiff had requested, to disregard the statute if they found that the defendant's vehicle had not entered the street when the plaintiff began to cross. Such an instruction would have been contrary to the law that a pedestrian has a continuing duty to look carefully. See Bukowski v. Buffum, 103 N.H. 544, 547, 176 A.2d 330, 332 (1961).

The trial judge also instructed the jury that if they found that a reasonable and prudent person would have crossed at the nearby crosswalk rather than where the plaintiff had crossed, then they could find legal fault on the part of the plaintiff if such negligence caused or contributed to cause the alleged accident. The plaintiff argues that such an instruction is contrary to the law that a pedestrian has no duty to use crosswalks. Although we agree that pedestrians have no statutory duty to use a crosswalk, see RSA 262-A:34 I, failure to use an available crosswalk may constitute in some instances negligence if it causes or helps to cause the accident.

A person is negligent if he fails to conduct himself as a reasonable and prudent person would under like circumstances for the protection of his interests. See Sargent v. Ross, 113 N.H. 388, 391, 308 A.2d 528, 530 (1973); Fissette v. Railroad, 98 N.H. 136, 141, 96 A.2d 303, 306 (1953); Robinson v. Railroad, 85 N.H. 474, 475-76, 160 A. 473, 474 (1932). If a person voluntarily chooses a course of action that is more dangerous than another available course, then he may not be reasonably protecting himself. See Remillard v. New England Tel. Co., 115 N.H. 702, 704, 349 A.2d 588, 590 (1975), W. Prosser, Handbook of the Law of Torts 148-49 (4th ed. 1971); cf. Cooley v. Company, 90 N.H. 460, 465-66, 10 A.2d 673, 676 (1940). Accordingly, when a person has two places in which to walk and voluntarily chooses the more dangerous path, then that person may be negligent if, under the circumstances, a reasonable and prudent person would have chosen the safer way. See Dammer v. Metropolitan Merchandise Mart, 9 Storey 247, 59 Del. 247, 249-50, 217 A.2d 688, 689-90 (1966); Harris v. Union Stock Yard & Transit Co., 29 Ill.App.3d 1072, 1080-81, 331 N.E.2d 182, 188-89 (1975); Klimovich v. Crutcher, 57 Ill.App.2d 444, 451, 206 N.E.2d 723, 727 (1965).

Because the plaintiff voluntarily chose not to cross the street at the available crosswalk, the issue whether a reasonable person would have chosen plaintiff's course of action rather than walking the short distance to cross at a marked crosswalk...