Burns v. Cote

• Decision Date: 07 February 1933
• Citation: 164 A. 771
• Parties: BURNS v. COTE.
• Court: New Hampshire Supreme Court

164 A. 771

BURNS

v. COTE.

Supreme Court of New Hampshire. Hillsborough.

Feb. 7, 1933.

Transferred from Superior Court, Hillsborough County; Woodbury, Judge.

Case by Robert F. Burns against Emile Cote. Transferred on defendant's exceptions.

New trial.

Case, to recover for personal injuries alleged to have been caused by the negligent operation of the defendant's automobile. Trial by jury and verdict for the plaintiff.

The accident occurred on January 19, 1930, at about 11 o'clock in the forenoon. The plaintiff was walking in an easterly direction on the northerly side of the Candia road, so called, in Manchester, when the defendant's car, proceeding in the same direction and driven by one Paige, an employee of the defendant, skidded and struck him. The defendant conducted a taxicab service.

Motions for a nonsuit and directed verdict were denied subject to the defendant's exception. The defendant also excepted to a part of the charge and to the denial of certain requests for instructions.

Alfred J. Chretien, of Manchester, for plaintiff.

O'Connor & Saidel, of Manchester, for defendant.

MARBLE, Justice.

The plaintiff's evidence tended to prove the following facts: The highway on which the plaintiff received his injury was constructed of cement. The plaintiff was walking at the extreme left-hand edge of the cement in order to avoid cars coming from the west. It was impossible for him to walk on the shoulders of the highway, since snow was piled high on each side of the road. There was no sidewalk.

Paige, driving a seven-passenger Nash touring car and carrying a passenger, saw the plaintiff about five hundred feet away. The highway was covered with a thick coating of ice, and Paige was driving over this ice at a speed of approximately twenty-five miles an hour. Just before reaching the plaintiff, he turned his car to the right to pass an on-coming automobile and, in doing so, ran off the cement. As he headed the car back toward its former position in the road, it began to skid, turning around twice, and striking the plaintiff. The skidding could fairly be attributed to Paige's manner of operating the car on the icy road, and such operation, in the light of his knowledge of the condition of the highway, might properly be deemed negligent. Cullen v. Littleton, 84 N. H. 373, 375, 150 A. 809; DeAntonio v. New Haven Dairy Company, 105 Conn. 663, 667, 136 A. 567; King v. Wolf Grocery Company, 126 Me. 202, 137 A. 62; Sullivan v. Lutz, 181 Wis. 61, 65, 194 N. W. 25.

The defendant argues that since the plaintiff "knew the road was a sheet of ice" and must have appreciated the fact that cars might skid, he was in fault as a matter of law for failing to look backward frequently and even for walking in the highway at all.

The mere fact that the plaintiff realized his position was a dangerous one did not preclude recovery. Prichard v. Town of Boscawen, 78 N. H. 132, 133, 97 A. 563, and cases cited; Vandell v. Sanders, 85 N. H. 143, 144, 155 A. 193. He was walking where people were accustomed to walk. He could observe cars coming from the east, and might reasonably assume that those coming from the west would pass him on the right. Under such circumstances, the extent to which he was required "to look behind him to protect himself would plainly depend upon all facts of the particular case; and the answer being an inference to be drawn from facts proved, must be returned by the triers of fact." Bourassa v. Railway, 75 N. H. 359, 360, 74 A. 590, 591. The presiding justice did not err in denying the motions for a nonsuit and directed verdict.

The defendant excepted to the denial of the following request for instructions: "I instruct you under the law that skidding in and of...