Boston v. B. & M. Super Serv., Inc.

• Decision Date: 03 June 1941
• Parties: BOSTON v. B. & M. SUPER SERVICE, Inc. FRYE v. B. & M. SUPER SERVICE, Inc., et al. COOKSON v. B. & M. SUPER SERVICE, Inc.
• Court: New Hampshire Supreme Court

20 A.2d 633

BOSTON

v. B. & M. SUPER SERVICE, Inc.

FRYE

v. B. & M. SUPER SERVICE, Inc., et al.

COOKSON

v. B. & M. SUPER SERVICE, Inc.

Supreme Court of New Hampshire. Rockingham.

June 3, 1941.

Transferred from Superior Court, Rockingham County; Burque, Chief Justice.

Actions for negligence by Dorothy Boston against B. & M. Super Service, Incorporated, by Beverley C. Frye against B. & M. Super Service, Incorporated, and another, and by Edwin A. Cookson against B. & M. Super Service, Incorporated. Verdicts were returned for plaintiffs, and the cases were transferred from the trial term.

Judgments on verdicts.

Actions, for negligence. Trial by jury and verdicts for the plaintiffs. An automobile of the defendant corporation, herein called the defendant, while driven by its salesman Montville, ran into the rear end of a car traveling ahead of it and driven by the plaintiff Cookson. The plaintiff Miss Frye was a passenger in the defendant's car, and the plaintiff Mrs. Boston was in the other car and giving Cookson a lesson how to drive. The accident happened in Kittery, Maine, on a straight and level stretch of a three-lane cement highway.

The defendant moved for nonsuits and directed verdicts on the two grounds of contributory negligence on the part of each plaintiff and of Montville's unauthorized use of its car. To the denial of the motions it excepted.

William H. Sleeper, of Exeter, for plaintiffs.

Waldron & Boynton, of Portsmouth (Jeremy R. Waldron, of Portsmouth, orally), for defendant.

ALLEN, Chief Justice.

The evidence how the accident happened is in many respects in conflict and confusing. Montville's negligence, however, is conceded. The Ford car which was ahead of him and which he ran into was in the process of making a left hand turn to cross the highway and enter a private driveway. There was evidence that in the process it stopped to permit a truck coming from the opposite direction to pass by before it crossed the lane in which the truck was proceeding. In any event it was moving slowly when struck.

Montville's passenger did not observe the Ford car until they were close upon it when it was too late to avoid the crash into it. The claim that she is chargeable with contributory fault as matter of law rests in part upon a claim of a required finding that Montville was so much under the influence of liquor at the time that she should have been aware of it and either refused to ride with him or been more vigilant and warned him seasonably of the danger.

It was in evidence that she desired to buy a car when she could afford it. Montville as a car salesman and knowing her as a possible customer called her attention to one and an appointment was made for her to see it at his employer's garage in Portsmouth. She arrived there at about nine o'clock in the evening of the day of the accident. Some social enjoyment was indulged in, during which liquor was served. So far as the evidence shows, she had one drink and Montville not over two. Afterwards, at about ten o'clock, he left to meet his wife and take her to their home in Rye, using one of the defendant's cars. He returned in about three-quarters of an hour, and at about eleven o'clock left the garage with Miss Frye to drive her beyond Kittery to York where she was teaching school. The car he took was the one in which he sought to interest Miss Frye. The accident took place while on their way to York.

No direct evidence that prior to the accident Montville was observably under the influence of liquor has been pointed out, but it is understood to be the defendant's position that the circumstances of the accident demand the inference. This position appears to be one of arguing in a circle, asserting that unfitness to drive caused the accident which in turn proved the unfitness. In other words, the accident proved its cause and itself showed how it happened. The real cause was negligent attention to travel ahead, and the evidence does not compel a finding that liquor produced the inattention. "* * * it is necessary, in order to establish contributory negligence in a case such as this, not only that the driver of the car should, to the knowledge of the passenger, have been under the influence of liquor, but that this condition should have been a contributing cause of the accident." Bubar v. Fisher, 134 Me. 10, 11, 180 A. 923, 924.

Miss Frye testified that Montville "acted all right" and "appeared to be responsible" when they left the defendant's garage and that until the accident he drove properly. She knew that while "he had had a drink", he had afterwards...