Clough v. Schwartz

• Citation: 48 A.2d 921
• Parties: CLOUGH v. SCHWARTZ et al.
• Decision Date: 27 July 1946
• Court: Supreme Court of New Hampshire

48 A.2d 921

CLOUGH

v.SCHWARTZ et al.

Supreme Court of New Hampshire.

July 27, 1946.

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

Action on the case for negligence by Charles W. Clough against Jacob Schwartz and another to recover for injuries sustained when fire truck in which plaintiff was riding collided with a truck owned by the named defendant. A verdict was entered for the plaintiff. Defendants filed exceptions to denial of their motion for a directed verdict to admission of certain evidence, to argument of counsel and to the instructions given to jury, and the case was transferred to the Supreme Court.

Judgment on the verdict.

Case, for negligence. The plaintiff, a lieutenant of the Manchester Fire Department, was injured when the fire truck in which he was riding collided at an intersection with a truck owned by the defendant Schwartz and operated by the defendant Wilkinson. The fire truck was driven with a siren in operation by one Herbert, another fireman in the Manchester Fire Department. Trial by jury, with a view and verdict for the plaintiff. Defendants' exceptions to the denial of their motion for a directed verdict, to the admission of certain evidence, to the argument of counsel and to the instructions given to the jury were transferred by the court.

Wyman, Starr, Booth, Wadleigh & Langdell and Robert P. Booth, all of Manchester, for plaintiff.

Arthur A. Greene, Jr., of Manchester, Alvin A. Lucier, of Nashua, and Sheehan, Phinney & Bass and Perkins Bass, all of Nanchester, for defendants.

KENISON, Justice.

The jury were properly instructed that any negligence of Herbert, the fireman driving the fire truck, was not imputable to the plaintiff. Shuster v. McDermit, 104 N.J.Law 58, 140 A. 421. The relationship of the driver and the plaintiff was that of fellow servants or coemployees in the Manchester Fire Department. ‘The negligence of the driver of a vehicle is not generally imputed to another occupant therein, when the relation between the parties is that of fellow servants. Thus, negligence of the driver of a fire engine or truck, or other fire department vehicle, is not imputed to another employee of the fire department who is riding on the machine at the time of the accident, and the fact that one holds a superior position does not change the rule.’ 5-6 Huddy, Cyclopedia of Automobile Law, § 151. Insofar as Lynch v. Boston Elevated Railroad Co., 224 Mass. 93, 112 N.E. 488, 489, supports a contrary ruling, it may be distinguished since the fire truck was being demonstrated by the manufacturer, it was not proceeding to a fire and the court found that there was ‘no occasion for hurry.’

The doctrine of imputed negligence from McCarthy v. Souther, 83 N.H. 29, 137 A. 445, to the latest case of Bixby v. Railroad, N.H., 47 A.2d 575, has been definitely limited to cases where there was a right to control in the relationship of master and servant, principal and agent or joint enterprise. The limitation on the rule of imputed negligence in this state is further indicated by the disapproval of the ‘family purpose’ doctrine (LaFond v. Richardson, 84 N.H. 288, 149 A. 600, with its corollaries. Pickard v. Morris, 91 N.H. 65, 68, 70, 13 A.2d 609. The plaintiff cannot be considered as a participant in a joint enterprise. Berry, Automobiles, 4.395: Restatement, Torts, § 491, comment d; Noel v. Lapointe, 86 N.H. 162, 164, 164 A. 769.

The trial court after reading the provisions of R.L. c. 119, § 20, charged the jury in part as follows: ‘With regard to this statute, the evidence is that Mr. Wilkinson did not bring his vehicle to the right-hand side of the road or bring it to a stop. In other words, so far as this statute is concerned, it was also a violation of the statute, but as in the other case you will inquire whether or not such violation caused or helped to cause the accident.’ The defendants take nothing by their exceptions since neither the statute nor the charge imposed an absolute duty of the driver of the non-emergency vehicle. ‘An extremely high standard was established, but the criterion is still the exercise of [due] care, and an absolute [duty] is not imposed.’ Carleton v. Boston & M. Railroad, 82 N.H. 263, 266,...