Colby v. Avery.

• Decision Date: 06 February 1945
• Docket Number: No. 3499.,3499.
• Citation: 40 A.2d 841
• Parties: COLBY v. AVERY.
• Court: New Hampshire Supreme Court

40 A.2d 841

COLBY

v.AVERY.

No. 3499.

Supreme Court of New Hampshire.

Jan. 2, 1945.

Rehearing Denied Feb. 6, 1945.

Exceptions from Superior Court, Merrimack County; Connor, Judge.

Action on the case for personal injuries by James Colby against Verne Avery. The judge returned a verdict for plaintiff. On defendant's exceptions.

Judgment on the verdict.

Case, for damages suffered by the plaintiff in a motor vehicle accident. Trial by jury. Verdict for the plaintiff. The defendant seasonably moved for a nonsuit, on the ground that the plaintiff was conclusively chargeable with contributory negligence, and for a directed verdict on general grounds. To the denial of these motions he excepted. He also excepted to the admission and exclusion of certain evidence, to portions of the argument by plaintiff's counsel, to portions of the charge given, and to the denial of certain requests made by him for instructions. Transferred by Connor, J. The essential facts appear in the opinion.

Robert W. Upton, of Concord, for plaintiff.

Sulloway, Piper, Jones, Hollis & Godfrey, of Concord (Jonathan Piper, of Concord, orally), for defendant.

PAGE, Justice.

The plaintiff suffered personal injuries on December 11, 1941, when he was struck by an automobile owned and driven by the defendant in a public highway in Boscawen. The plaintiff attempted vainly to start his truck that morning. It could be found that he and his brother Robert then pushed the truck out of the Colby yard and southerly along the highway a distance of some 150 feet. Failing in this manner to start the motor, they waited for the arrival of the school bus to take Robert to the Penacook High School. The driver of the bus, Edward Bassett, then towed the truck southerly down the highway. After the truck, with the plaintiff at the wheel, had been towed some distance, the motor started, the plaintiff blew his horn as a signal for Bassett to stop, and Bassett did stop. The distance the truck was towed turned out to be a matter of importance in determining the approximate place of the accident. The statement made by the plaintiff to a representative of the defendant's insurer, six weeks after the accident, gave the distance as 150 or 200 feet; but his testimony at the trial eighteen months later gave it as 500 to 600 feet. This discrepancy the plaintiff explained by saying that he had first estimated the distance, but had later viewed the location, and knowing that the accident happened just north of a large stump, was able by pacing to revise his estimate made while he was still in the hospital. The explanation might reasonably be accepted.

After the bus and the truck came to a stop, they stood in the westerly lane (their own side) of the highway with their right wheels about one foot off the pavement, if the plaintiff be believed, and one or two feet easterly of the westerly edge of the pavement, if the defendant be believed. The plaintiff and some of his witnesses testified that Colby remained in the truck two or three minutes to warm the motor. He made no such claim in his deposition. The jury might nevertheless have believed his testimony in chief.

The plaintiff then stepped out. While doing so, he noticed the defendant's car approaching from the south, about 500 or 600 feet away, at a speed that he and his witnesses testified was 50 or 60 miles an hour, while the defendant and his witnesses said it was 35 or 40 miles an hour. The defendant's car, the plaintiff said, was astride the middle of the highway. The defendant and his witnesses said that he was driving nearly as far as possible to the easterly edge of the pavement, which was about 20 or 22 feet wide. The plaintiff admitted that he foresaw that he might be hit and that he stood for some six seconds with his left foot on the ground, his right foot on the running board of the truck, and his hand on the door, which he was in the act of closing, believing that the defendant would see him and swerve to the right.

The theory on which the plaintiff tried his case was that the defendant, without slackening speed or swerving, though he saw the bus and the truck, passed within two feet of the truck; and that the front bumper of the Avery car hit the plaintiff's leg, and spun him about so that his left hand was caught on the handle of Avery's car, where blood and hair were found. The defendant's theory was that the plaintiff darted out of the truck as the defendant's car got nearly abreast and ran into the middle of the Avery car. If the latter had happened, possibly the plaintiff must have been found conclusively negligent. But the defendant's own testimony cast doubt upon his theory, because if his car and the truck were where he says they were, in a road 20 to 22 feet wide, the distance between the cars, as Avery passed, would have been at least six feet. Avery himself estimated it at three or four feet. Avery, who charges the plaintiff with discrepancies between known distances and estimated ones, begins himself with such a discrepancy. Yet his counsel insists that his testimony is to be believed, while that of the plaintiff must be disbelieved and the jury not permitted to consider it. The situation, however, is such that the jury had the duty of finding what the truth probably was, without the necessity of the court finding that either party was consciously and fraudulently building up a case, as was held in Hebert v. Boston & M. R. R., 90 N.H. 324, 8 A.2d 744.

While the plaintiff would be bound by his testimony concerning objective matters known to him, he would not be so bound as to matters about which he might be mistaken. Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973; Morris v. Boston & M. R., 85 N. H. 265, 160 A. 52; Sarkise v. Boston & Maine R., 88 N.H. 178, 181, 186 A. 332. So Colby was bound by his statement that he saw the defendant's car approaching and appreciated that there was danger. Katsikas v. Manchester St. R., 90 N.H. 21, 3 A.2d 821, Gelinas v. J. J. Newberry, Co., 90 N.H. 312, 8 A.2d 753. Knowing that he did not move away from the danger, he is bound by his testimony to that effect. Heidenreich v. Dumas, 88 N.H. 453, 190 A. 705. The consequent inference from these principles will presently be discussed.

If the distance was six feet or more as indicated by Avery's testimony as to the positions of the cars in the highway, one could never acount for the testimony of one of Avery's witnesses that he saw Colby thrown from the Avery car to the side of the truck, and then bounced back into the Avery car again. But the testimony about the bouncing back and forth would be perfectly consistent with the plaintiff's testimony that the Avery car was within two feet of the truck and practically astride the middle of the road. The jury were justified in rejecting the defendant's theory of how the accident happened.

But the defendant's counsel nevertheless argues that, even if the defendant was negligent, the plaintiff must be held to have been contributorily negligent, since for six seconds he stood watching the defendant's approach at high speed, knowing that he might be hit, yet making no motion to save himself, as by getting back into the truck (which was not hit), or by taking position ahead of the truck or behind it. The argument overlooks the fact that the jury might find that the plaintiff was justified in believing that Avery would see him and swerve. McCarthy v. Souther, 83 N.H. 29, 31, 137 A. 445; Chemikles v. J. M. Wilson Co., 84 N.H. 437, 438, 152 A. 275. Moreover, while we know by hindsight that Colby would have been safe if he had taken refuge in any of the ways suggested, reasonable men were not bound to find that foresight would have made it appear to him that Avery's car was in no danger of colliding with the school bus or the truck. To state it otherwise, the jury might have thought that a reasonable man, seeing the situation as Colby described it, would perceive no ponderable preference as to the safety of one place over another. The error of the defendant's view lies in his insistence that the plaintiff should have foreseen the actual outcome rather than one of possible safety, and that his foresight should have been equal to hindsight.

Much depends, as has been suggested, upon whether the accident happened a little north of the stump, as the plaintiff claims, or, as the defendant asserts, approximately 400 feet further north, just south of a gravel bank. The...