Bill v. New England Cities Ice Co.

• Decision Date: 02 January 1940
• Citation: 10 A.2d 662
• Parties: BILL v. NEW ENGLAND CITIES ICE CO.
• Court: New Hampshire Supreme Court

10 A.2d 662

BILL

v. NEW ENGLAND CITIES ICE CO.

Supreme Court of New Hampshire. Hillsborough.

Jan. 2, 1940.

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

Action by Wilbur E. Bill against the New England Cities Ice Company, as the Balcom-Nashua Ice Company, for injuries sustained in defendant's employment when defendant's truck overturned while it was being operated by plaintiff. Verdict for plaintiff, and defendant brings exceptions.

Judgment on the verdict.

Case for negligence by a servant against his master to recover damages for personal injuries sustained as a result of the over-turning of the defendant's truck which was being operated by the plaintiff. Trial by jury with a verdict for the plaintiff.

Transferred by Burque, C. J., upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict, to the admission and exclusion of evidence and to the denial of its requests for instructions.

The evidence tended to show that upon December 17, 1936, the plaintiff was employed by the defendant as the driver of a combination oil and ice truck and in the usual course of his employment was traveling southerly on the Daniel Webster Highway, in Nashua, for the purpose of making a delivery of ice. The highway was of cement construction, three lanes wide. As the plaintiff approached the junction of the Old Lowell Road with the Highway, he was driving in the right-hand lane at a speed of about 30 miles per hour. There was a school bus stopped on the Old Lowell Road at a stop sign near the intersection. Shortly before he reached this intersection, the plaintiff suddenly saw a dog running across the road ahead of him in the middle lane. At the time he first saw the dog it was about 35 or 40 feet from the truck. He turned his truck toward the left to avoid hitting the dog, and the truck then "started teetering", swayed over on the two right wheels, then back on the other two wheels and tipped over. When the truck tipped over, the plaintiff was thrown out and received the injuries for which recovery is sought.

The truck which the plaintiff was driving consisted of a home-made ice body of wooden construction, mounted on a Ford, model AA, chassis. Although actual measurements of the truck body were not available at the trial, there was testimony that its inside width was approximately 46 inches and that the approximate height of the floor from the ground was 3 feet, 4 inches. The plaintiff's evidence tended to show that this body was mounted too high upon the chassis of the truck, as the result of which the vehicle was out of balance, or top-heavy, and that the accident resulted from this condition.

Other facts are stated in the opinion.

Ivory C. Eaton and Robert F. Griffith, both of Nashua, for plaintiff.

Warren, Wilson, McLaughlin & Wiggin, of Manchester, for defendant.

BRANCH, Justice.

To establish the defendant's negligence, the plaintiff called, as expert witnesses, two men who were familiar from long experience with the construction and operation of trucks and who examined the truck in question immediately after the accident. They both testified, in general terms, that the body of this truck was mounted upon the chassis in such a way as to make it top-heavy and cause it to tip quickly. This testimony, if acceptable at its face value, would support a finding that the defendant furnished for the use of the plaintiff a defective and dangerous instrumentality.

In order to escape this conclusion, the defendant argues as follows: "The defendant submits that in order for reasonable men to find that such equipment was, in fact, not reasonably proper, there must be in evidence a standard by which this truck body can be compared. Merely because a man observes and forms the opinion that a truck body is narrow and high is not sufficient proof. Such construction may well be reasonable and proper. It may well be standard construction for the particular business for which it was designed. To say that it is too narrow, too high and top-heavy is not, therefore, in and of itself sufficient to form a basis for a finding of legal liability on the part of the master. Nowhere in the evidence produced by the plaintiff are there any facts upon which the jury could base and establish a standard of reasonable construction. Any finding, therefore, made by the jury of improper construction must have been based on guess and conjecture as to the standard required."

One answer made by the plaintiff to this argument is that the testimony of his expert, Sirois, did furnish the basis from which a "standard of reasonable construction" might be found. The testimony of this witness is summarized in the plaintiff's brief as follows: "...