Demers v. Flack

• Decision Date: 02 June 1936
• Citation: 185 A. 896
• Parties: DEMERS v. FLACK.
• Court: New Hampshire Supreme Court

185 A. 896

DEMERS

v. FLACK.

Supreme Court of New Hampshire. Hillsborough.

June 2, 1936.

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

Action by Jennie B. Demers against Esther Flack. Case transferred from the trial term on defendant's exceptions to admission of certain evidence, to submission of certain issues to jury, and to portions of the charge.

New trial.

Case, for negligence. A trial by jury, after a view, resulted in a verdict for the plaintiff.

The defendant's home is located on the east side of North River Road in Manchester. Access to the premises with vehicles is by means of a driveway north of the house which crosses a sidewalk and intersects the traveled part of the highway at approximately right angles.

On August 14, 1933, the defendant drove her car out of the driveway and into the street intending to turn south. When part way into the street, and before she had begun to turn, her car was in collision with that of the plaintiff who was driving north on River road.

The court transferred the defendant's exceptions to the admission of certain evidence, to the submission of certain issues to the jury, and to portions of the charge.

Further facts appear in the opinion.

Sullivan & Sullivan and Thomas E. Dolan, all of Manchester, for plaintiff.

Devine & Tobin, and John A. Tobin, all of Manchester, for defendant.

WOODBURY, Justice.

The plaintiff contends that the shock of the collision caused the top of her head to come into violent contact with some part of the interior of her car and that soon after the accident she suffered severe pain in her head and jaw. About three weeks after the accident X-ray pictures of her teeth were taken and they disclosed a fracture of the root of one of her molars. This condition necessitated the extraction of that tooth and thereafter her jaw became swollen, painful, and finally immobile. For this condition she required hospital treatment, was unable for several weeks to take anything but liquid nourishment, and suffered great pain.

The defendant takes the position that there is no evidence in the case sufficient to warrant the finding either that she suffered the broken tooth in the accident, or that the immobility of her jaw was more probably due to the broken tooth than to its extraction.

I. The interpretation of the evidence most favorable to the plaintiff indicates that a severe blow on the top of the head may cause the jaws to close violently, and if it does and the teeth come together out of alignment, such a blow may cause the fracture of a tooth. The record is clear that the plaintiff received a blow on her head, but it is silent as to whether this blow caused her jaws to snap together, or, if it did, that the teeth struck out of alignment. From this lack of evidence the defendant argues that a finding that the plaintiff's tooth was broken in the accident would be one based, not upon evidence, but upon guess or conjecture. The defendant's position would be well taken if the evidence objected to was the only evidence in the case on the question of the cause of the plaintiff's injury. Nadeau v. Stevens, 79 N.H. 502, 111 A. 749. But the case at bar differs from the case last cited in that here there is other evidence on the subject. The plaintiff testified that before the accident her teeth were in excellent condition and gave her no trouble. This testimony was corroborated by her dentist. She also testified that within a...