Bukowski v. Buffum
| Decision Date | 29 December 1961 |
| Citation | 176 A.2d 330,103 N.H. 544 |
| Parties | Peter W. BUKOWSKI v. Sarah E. BUFFUM. |
| Court | New Hampshire Supreme Court |
Sheehan, Phinney, Bass, Green & Bergevin and Joseph F. Devan, Manchester, for plaintiff.
Booth, Wadleigh, Langdell, Starr & Peters and Robert F. McGinnis, Manchester, for defendant.
The principal contention of the defendant is that the plaintiff was guilty of contributory negligence and that his own testimony bars recovery.
The plaintiff was 66 years of age and had been crossing the street in the same general area for thirty years. His hearing and eyesight were good. He was aware that around 5:00 o'clock the traffic was heavy.
On the day of the accident, following his usual custom, he stopped on the sidewalk before stepping out into the street. He waited until some traffic proceeding easterly on the bridge had passed and testified 'When I started to cross, I could not see any cars in either direction' and He saw cars further down the bridge '* * * but close to me, no.'
After getting out into the road about four feet, he testified, he could see easterly to a point about one-quarter of the way across the bridge and he looked 'carefully' to his left and to his right and saw no cars. He continued across the middle of the road and looked 'carefully' again but failed to see any approaching lights. At no time did he observe a car approaching closely while crossing the street. The plaintiff wore a dark coat and brown hat.
The defendant was proceeding across the bridge at 25 miles per hour. Her lights were on low beam. It had been raining that day and the road was wet. There were no vehicles approaching easterly within 500 feet. Her first knowledge of the plaintiff's presence was when she saw his face turned in her direction. She immediately applied the brakes and stopped. The left rear tire left a mark on the pavement 25 feet long.
Taking the evidence most favorable to the plaintiff we think it admits of only one conclusion, that if he had looked 'carefully' as he said he did on at least three occasions before and while crossing the street, a 'careful' look would have disclosed the presence of the defendant's approaching motor vehicle. His due care is not to be judged on the basis of what he claimed he did not see but in the light of what the ordinary man of average prudence in the position of the plaintiff ought reasonably to have observed. Niemi v. Boston & M. R. R., 87 N.H. 1, 3, 173 A. 361; 175 A. 245; Lafountaine v. Moore, 90 N.H. 258, 6 A.2d 751; L'Heureux v. Desmarais, 89...
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Bellacome v. Bailey, 80-038
...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......
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Eckhart v. Linaberry, 6672
...(1938); Lafountaine v. Moore, 90 N.H. 258, 6 A.2d 751 (1939); Murphy v. Granz, 91 N.H. 244, 17 A.2d 449 (1941); and Bukowski v. Buffum, 103 N.H. 544, 176 A.2d 330 (1961). The basis of the holdings in those cases was either that the person failed to see what was obviously there when he looke......
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Bradsher v. Stevens
...that if he did look, he did so carelessly, is clearly warranted. Lafountaine v. Moore, 90 N.H. 258, 260, 6 A.2d 751; Bukowski v. Buffum, 103 N.H. 544, 546, 176 A.2d 330. The test of the plaintiff's conduct is not what he saw, but what he should have seen had he kept a proper watch. L'Heureu......