Brember v. Jones

• Decision Date: 17 March 1893
• Citation: 67 N.H. 374,30 A. 411
• Parties: BREMBER v. JONES.
• Court: New Hampshire Supreme Court

30 A. 411

67 N.H. 374

BREMBER

v. JONES.

Supreme Court of New Hampshire. Hillsborough.

March 17, 1893.

Case reserved from Hillsborough county; Isaac W. Smith, Judge.

Action by Andrew C. Brember against Jeremiah B. Jones for injuries caused by negligence of defendant. Case reserved. Judgment for defendant.

Facts found by the court: "The plaintiff was riding in a top, four-wheeled buggy, and the defendant in an open express wagon, upon Elm street in Manchester. At a point about midway between Prospect and Harrison streets their carriages collided. The plaintiff's carriage and harness were broken, and his person slightly injured. At the place of collision, Elm street is 100 feet in width. The sidewalks on either side are about 16 feet wide, leaving 68 feet for a carriage way. The surface of the roadbed is level, and is paved with granite blocks. A double track street railway occupies the center of the street, the tracks being 3 feet in width and 4 feet apart The distance from the most easterly rail to the easterly sidewalk is 27 feet, or 24 feet to a line of trees standing on the easterly side of the street The plaintiff was traveling north, and the defendant south, on the easterly side of the street-railway tracks; the plaintiff being the nearer to the sidewalk, and the defendant the nearer to the railway track. The plaintiff claimed that the collision was caused by the defendant's negligence, other than by his traveling on the easterly side of the center of the highway. The defendant claimed that the collision was caused by the plaintiff's negligence. Upon both these issues there was no preponderance of evidence in favor of the plaintiff. The accident would not have happened if the defendant had traveled on the westerly half of the highway. If, as matter of law, the defendant is liable because he did not turn seasonably to the right of the center of the highway, the plaintiff's damages are assessed at $100."

C. E. Cochrane and J. F. Briggs, for plaintiff.

William Little, for defendant.

CLARK, J. The statute "establishing the law of the road" goes no further than to prescribe the duties and regulate the rights of travelers "in meeting and passing each other with carriages and vehicles, and leaves their rights and liabilities in all other particulars unaltered, and to be regulated and determined by the principles of the common law. Ordinarily, if one traveler in meeting another be found upon the half of the way appointed to him by the statute, traveling with ordinary care and prudence, and he sustain an injury by a collision with the vehicle of another, who is upon that part of the way to which he has not the statutory right, the individual who has thus sustained the injury may have redress byaction against him who was thus on the part of the way to which the statute did not give him the right. The traveler who thus travels prudently and carefully upon the half of the way assigned to him, will ordinarily pass at the hazard and risk of him who trenches upon his rights in the manner already stated. * * * It is legal negligence in any one thus to occupy the half of the way appropriated by law to others having occasion to use it in traveling with teams and carriages, and he is chargeable for any injury flowing exclusively from that cause. * * * If carelessness or negligence be shown on the part of him who may have sustained an injury, and who seeks redress, and which has in some measure more or less contributed to the injurious result. In such case it would seem unreasonable * * * to allow a recovery for the damage sustained. It would allow a party to profit by his own negligence or wrong. In order to entitle himself to redress for injuries sustained in passing others on highways, the traveler must himself be faultless; he must not be found invading the rights of others at the time, nor to have contributed to his own injury, in any degree, by reason of his own carelessness or negligence. Carelessness on the part of the injured party, contributing to the injury, would forbid the legal conclusion that would otherwise result, of a right to redress for the injury sustained." Brooks v. Hart, 14 N. H. 307, 311, 312. It is not enough, to entitle the plaintiff to damages, to show merely that the defendant was traveling in violation of the law of the road at the time of the injury. To maintain his action the plaintiff must establish two propos...