Carter v. Bergeron
| Decision Date | 29 April 1960 |
| Citation | 160 A.2d 348,102 N.H. 464,89 A.L.R.2d 142 |
| Parties | , 89 A.L.R.2d 142 Russell R. CARTER, Adm'r, v. Novat B. BERGERON. PEERLESS INSURANCE CO. v. Novat B. BERGERON et al. |
| Court | New Hampshire Supreme Court |
McLane, Carleton, Graf, Greene & Brown, Stanley M. Brown, Manchester, for administrator.
Wiggin, Nourie, Sundeen, Nassikas & Pingree, Manchester, and Dort S. Bigg, Concord, for Bergeron and Peerless Ins. Co.
Devine, Millimet & McDonough, Manchester, for Bergeron and Manninen.
As insurer of the GMC pickup truck which was some distance beyond the scene when the collision occurred, Peerless Insurance Company advances two principal contentions: first, that the Trial Court erred in submitting the case to the jury under the second count of the writ, and in particular in submitting the special question based on that count; and second, that its policy furnishes no coverage to Bergeron even if it could properly be found that his negligence in controlling the operation and speed of the truck operated by his employee caused or contributed to cause the accident.
I. In support of the first of these contentions, it is argued that there was no evidence to warrant a finding that Bergeron attempted to or in fact did control the speed of the truck operated by Manninen, or that the speed of this truck was excessive or contributed to cause the accident. It it also argued that as a matter of law the negligence of Manninen was in any event a superseding cause of the collision; and further that the decedent was contributorily negligent as a matter of law, and the administrator's action is therefore barred.
The defendant Bergeron testified that the horses were loaded upon the truck operated by Manninen in Danbury, and that he followed in the pickup truck as far as Potter Place, where he 'took the lead,' having satisfied himself that the horses were riding well. Manninen had been in his employ only four days, and this was the first time that he had transported livestock for Bergeron. Bergeron testified that on two different occasions before reaching Boscawen, he stopped and signaled Manninen to pass. He testified that from Penacook to Concord he followed the other truck, and that at the south end of Main Street in Concord he passed it and proceeded on his way to Wilton, without again seeing it.
It could be found from the testimony of Manninen, however, that Bergeron did not leave him until Manninen reached the intersection of Routes 3 and 28 in Hooksett. He testified that as he slackened his speed for the intersection, Bergeron 'was just going around that corner' some two thousand feet ahead. It could be found from Manninen's testimony, both on deposition and at the trial, that the two vehicles had traveled at an average speed of thirty-five to forty miles an hour along the route, with Bergeron 'trying to get [him] to go a little bit faster * * * [by] motioning [him] to come on.' On deposition he testified that this procedure continued 'practically all the way coming down.' At the trial however he testified that 'from Concord down he [Bergeron] left me alone.' He then conceded however, that Bergeron did not leave him until he reached the intersection in Hooksett, and that it was his recollection when his deposition was taken that 'Bergeron had been shepherding [him] along all the way down and was just going around the corner at about the time the accident took place.'
The collision occurred, according to Manninen's testimony, after he first saw the Carter truck crossing the highway, thirty to thirty-six feet ahead, at which time he turned toward his left to go ahead of it. He testified that he applied his brakes, but 'not to the full extent that [he] probably should have,' and collided with the forward part of the Carter truck in the center lane of the three-lane highway, from where his truck continued to the left-hand shoulder of the highway. The horses were thrown from the truck, the Carter truck was spun about toward the south and, Carter was precipitated onto the highway.
There was evidence that at a speed of forty miles an hour, which could be found to have been Manninen's speed, Manninen could have avoided the accident had he applied the brakes one hundred feet from the point of impact, and that he probably could have avoided it even if he did not see the truck until he was within forty feet of it.
From this and other evidence, the jury was warranted in finding that Bergeron's conduct in acting as pilot for Manninen so far influenced Manninen in the operation of the truck as to cause him to travel at a speed which was unreasonable under the circumstances and thereby caused or contributed to cause the accident. It could likewise reasonably find that Bergeron's conduct was an inducing cause of Manninen's negligence, both as to speed and failure to keep a lookout for vehicles entering the highway. See Thelen v. Spilman, 251 Minn. 89, 86 N.W.2d 700; annotation 48 A.L.R.2d 252. Hence, a finding that Manninen's negligence was a superseding cause of the accident was not required as a matter of law.
The insurer argues that the jury's disbelief of Manninen's testimony that Bergeron 'left him alone' after they reached Concord does not warrant a finding that Bergeron exercised any control over Manninen's speed beyond that point. Bissonnette v. Cormier, 100 N.H. 197, 199, 122 A.2d 257. Manninen himself however contradicted the testimony which he gave in this respect. He acknowledged that Bergeron 'was also still trying to make [him] speed up but [he was] unwilling to drive at that speed through the intersection,' and later agreed that 'we did establish * * * it was your recollection at the time of the deposition that Mr. Bergeron had been shepherding you all the way down and was just going around the corner [when] the accident took place.' If there was no affirmative evidence that Bergeron actively urged Manninen forward after they both had passed the intersection still the jury could find upon Manninen's testimony that he increased his speed as he came out of the intersection, and that when the collision occurred his speed was higher than it should have been. It could also properly infer that this was due to Bergeron's prior conduct, as a continuing factor in prompting Manninen's haste.
In short, we are of the opinion that there was no error in submission to the jury of the issue presented by the second count of the writ, and that the jury's answer to the question based thereon finds support in the record.
The evidence regarding the care...
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