Bellemare v. Ford. Same, 3551.

• Decision Date: 21 February 1946
• Docket Number: No. 3551.,3551.
• Citation: 45 A.2d 882
• Parties: BELLEMARE v. FORD. SAME v. ROBINSON.
• Court: New Hampshire Supreme Court

45 A.2d 882

BELLEMARE

v.FORD.

SAME

v.ROBINSON.

No. 3551.

Supreme Court of New Hampshire.

Feb. 21, 1946.

Exceptions from Superior Court, Merrimack County; A. J. Conner, Judge.

Actions on the case for negligence by Fabiola L. Bellemare against Maurice E. Ford and Earl A. Robinson, respectively, to recover damages for injuries sustained by plaintiff when struck by defendant Robinson's truck driven by defendant Ford. Verdicts for plaintiff, and defendants bring exceptions.

New trial.

Case for negligence. The plaintiff seeks to recover damages for injuries suffered by collision with a truck owned by the defendant Robinson and driven by his employee, the defendant Ford, in the course of his employment. Trial by jury. Verdicts for the plaintiff. The defendants excepted to the denial of their motions for nonsuits and directed verdicts, to certain instruction given to the jury, and to the denial of certain requests for instructions. The facts appear in the opinion.

Murchie & Murchie, of Concord (Alexander Murchie, of Concord orally), for plaintiff.

Robert W. Upton, of Concord, and Frederic K. Upton, of Concord (Frederic K. Upton, of Concord, orally), for defendants.

PAGE, Justice.

The accident happened in a public highway at the intersection of Central and Franklin Streets in Franklin on the afternoon of July 20, 1943. Central Street runs east and west, and Franklin Street intersects it from the south but does not cross it. Approximately in line with the sidewalks of Franklin Street, two crosswalks traverse Central Street to the northerly curb of the latter street. There were traffic lights at the intersection, but at the time of the accident they were not showing alternate green and red, and the amber light was blinking. A policeman stood at the westerly crosswalk about twelve feet from the northerly curb of Central Street, which is fifty-five feet wide from curb to curb. His position was just clear of the rear ends of two or three cars that were parked at angles of forty-five degrees against the northerly curb of Central Street, and between the two crosswalks.

There was a dispute in the testimony whether the policeman, at the time of the accident, was directing traffic and giving signals to drivers and pedestrians. However that may have been, Ford drove the Robinson truck westerly on Central Street and stopped within two or three feet of the easterly line of the easterly crosswalk, in order to permit some pedestrians to cross Central Street from the north to the south. When he stopped, the plaintiff, a woman in her late seventies, lame from a childhood attack of infantile paralysis, stood on the northerly curb preparatory to crossing. She appears to have followed the other pedestrians towards the south side of the street, using the easterly crosswalk.

After, as Ford supposed, the pedestrians had crossed, he started the truck, heard the plaintiff scream, and stopped immediately. Upon the evidence, it could be found that between starting and stopping he had moved no more than twenty feet; and, if the plaintiff's witnesses were believed, his forward motion had been at most fifteen feet. From the point of collision, the forward movement was, at most, not more than ten or twelve feet, about half the length of the truck, or, if the plaintiff's witnesses be believed, only a matter of six or eight feet.

At no time until after the accident did Ford see the plaintiff. Though she was understandably confused when she said that she was hit when she had got to a point opposite the driver (the truck had a lefthand drive), it could be found from the testimony of an eyewitness and from the position of the plaintiff after the accident, that at the moment of impact she was in front of the right side, was thrown down by the forward motion, and the right front wheel passed over her leg, breaking it in two places. She was found lying with her head on the westerly marker of the easterly crosswalk, her body and legs extended southeasterly and only her legs under the truck. See Isabelle v. Public Service Company, 93 N.H. 189, 190, 37 A.2d 367.

Upon these facts the finding is not compelled, as argued by the counsel for the defendants, that the plaintiff walked into the side of the truck, though that point might be arguable to a jury. The defendants do not urge that there is no evidence that Ford's fault was at least a part of the cause of the accident, but they do take the position that it must be found that the plaintiff's negligence was a contributing cause.

Whether or not the plaintiff was careful when she left the curb and while she was proceeding in the wake of the other pedestrians depends upon what circumstances are found. She testified that she believed that Ford had stopped to permit pedestrians to cross. The jury may well have credited her testimony, which was not impossible of acceptance. They might also believe that even if she were mistaken in thinking she came as near to passing the front of the truck as she thought, she told the truth when she said that the truck did not start until she was in front of it. Her reliance on the situation as she saw it might be thought to be consistent with due care. There was no red light to indicate that the crossing was improper at the moment. What the amber blinker meant does not appear, but it could not be taken as a prohibition of crossing. It is not necessary to consider whether the...