Cyr v. Sanborn

• Decision Date: 16 April 1958
• Citation: 101 N.H. 245,140 A.2d 92
• Parties: Chester H. CYR v. George SANBORN.
• Court: New Hampshire Supreme Court

Page 92

140 A.2d 92

101 N.H. 245

Chester H. CYR v. George SANBORN.

Supreme Court of New Hampshire.

Argued March 4, 1958.

Decided March 20, 1958.

Rehearing Denied April 16, 1958.

Devine & Millimet, Joseph A. Millimet, Manchester, for Chester H. Cyr.

Upton, Sanders & Upton, John H. Sanders, Concord, for George Sanborn.

LAMPRON, Justice.

This accident happened between 5:15 and 5:30 P.M. at the intersection of the Daniel Webster Highway and the Pembroke Sanatorium Road on a clear dark night and dry roads. The Highway was 30 feet wide and the Sanatorium Road, which extended straight easterly from it at a 90~ angle up a fairly steep hill, was 24 feet wide.

Sanborn was driving a 1/2-ton pickup truck. It was not equipped with directional lights but on the rear left corner of the body, on a bracket, it had a combination tail light and stop light: 'a white light to illuminate the license plate * * * a steady red light; and also a stop light * * * actuated * * * by your brake pedal.' He was traveling south annd knew there were two cars following immediately behind him and that there were cars an indeterminate distance in back of them.

He testified that he proceeded at about 45 miles per hour to approximately 300 feet north of Sanatorium Road. He then threw his clutch out and coasted with his left wheels 2 feet over to the left of the center of the highway. He continued southerly and tapped on the brake, to flash the stop light off and on, about 6 to 8 times up to a point about 50 or 60 feet north of the intersection where his speed had decreased to about 25 miles per hour. He then shifted into second gear, applied his brakes hard to slow down to about 10 miles per hour, and, when he was just a little north of Sanatorium Road, turned left therein and the collision occurred.

Cyr testified that he was proceeding southerly at about 35 miles per hour and was the third car behind Sanborn. There was a car about two or three car lengths in front of Cyr and another about the same distance ahead of it. The road was straight and as there were no cars coming in the opposite direction Cyr testified that he put on his directional signal, blew his horn, and proceeded to pass the car immediately ahead which he did at a speed of about 45 to 50 miles per hour. He further testified that, as he proceeded to overtake the next car, Sanborn's truck was down to the right two or three car lengths ahead of it, and as Cyr came abreast of that car Sanborn's truck came from the right-hand side of the road and cut across very sharply into the intersection of Sanatorium Road when Cyr's car was from 100 to 125 feet away. He testified that he immediately swerved to the left, applied his brakes, and blew his horn, and was practically stopped when the right front of his car came in contract with the left rear of Sanborn's truck.

RSA 263:34 provides that 'No person shall turn a vehicle at an intersection * * * unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement. A signal of intention to turn right or left when required shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.' The required statutory signal is to be given in a specified manner by hand and arm from the left side of the vehicle or by a signal lamp or mechanical signal device. Id.: 35, 36. Sanborn admitted that he gave no signal of his left turn by means of the hand and arm and he does not contend that the combination light on his truck complied with the statutory requirements of a signal lamp or device. However it was not unlawful to operate his truck without such lamp or device because it had been manufactured or assembled prior to January 1, 1952 (RSA 263:37) and the Court so instructed the jury.

Sanborn requested that, in the event the Court instructed the jury concerning any of the provisions of RSA 263:34, 35, 36, the following instructions be given: '6 * * * a. Mr. Sanborn was only obligated to signal his intent to turn left to such drivers of following cars as in the exercise of reasonable care he should have known might be affected or endangered by such a turn. b. If Mr. Sanborn in fact signaled effectively his intent to turn left to all following drivers whom he reasonably believed might be affected or endangered by such a turn, he cannot be found guilty of any violation of the * * * above provisions.'

The Court did not give the requested instructions and after reading to the jury pertinent parts of RSA 263:34-37 instructed them 'that Mr. Sanborn violated the requirements of this statute but * * * in order that Mr. Cyr might recover * * * you must go one step further and find that such violations caused the accident * * * [and if you so find] your verdict will be for Mr. Cyr provided you have found Mr. Cyr himself was free from fault.' Sanborn argues that 'upon proper construction of the statute two issues should have been submitted, the first, being whether Sanborn was negligent or at fault in turning when he did and the second whether he was negligent or at fault in failing to give a hand signal.' He maintains that the Court's refusal to charge as requested and the charge as given constituted reversible error.

Sanborn's argument that the Court should have submitted to the jury the issue of whether he violated the statute by turning when his turn could not be made with reasonable safety is of no avail. This issue was not covered by his requests for instructions. The charge submitted to the jury the issue of whether Sanborn's conduct on that evening was a reasonable use of the highway and whether he acted as the average prudent person would have acted under the circumstances. It is reasonably certain the jury understood from the charge as a whole that the issue of Sanborn's conduct in making the left turn as he did was being submitted to them. Paradis v. Greenberg, 97 N.H. 173, 175, 83 A.2d 606. Furthermore after the charge, Sanborn failed to bring to the attention of the Court this alleged deficiency in the instructions for corrective action. Bourassa v. Grand Trunk Railway Co., 75 N.H. 359, 362, 74 A. 590; Leavitt v. Benzing, 99 N.H. 193, 195, 107 A.2d 682.

The following evidence was uncontradicted. While Sanborn was traveling from a point 300 feet north of the intersection of the Highway and Sanatorium Road to a point 50 to 60 feet before his turn there were two cars following immediately behind his. One of them was about 40 feet behind his truck, another about 40 feet behind that car. There were also other cars behind those one of which turned out to be the Cyr car. Although Sanborn was aware of this situation he gave no signal of a left turn either by a signal lamp or mechanical device of a type approved by the Commissioner of Motor Vehicles or by hand and arm extended horizontally from the left side of his vehicle. RSA 263:34, 35, 36. On these incontrovertible facts no reasonable man could conclude otherwise than that Sanborn's conduct was a plain violation of the above statute and the Court properly so instructed the jury. Lynch v. Bissell, 99 N.H. 473, 476-477, 116 A.2d 121; Eastman v. Herrick, 87 N.H. 58, 173 A. 807. The Court's action in both instances was proper and Sanborn's exceptions thereto are overruled.

Sanborn's requests 6c and 6d asked the Court to instruct the jury in substance that he could not be found guilty of causal negligence if by flashing his brake light off and on he signaled his intention to turn as effectively as he would have by extending his hand and arm or if the accident would have occurred even if he had extended his hand and arm during the last one hundred feet before commencing his turn.

The obvious purpose of these requests was to have the Court charge...