Dimock v. Lussier

• Decision Date: 01 November 1932
• Citation: 163 A. 500
• Parties: DIMOCK v. LUSSIER, and three other cases.
• Court: New Hampshire Supreme Court

163 A. 500

DIMOCK

v. LUSSIER, and three other cases.^*

Supreme Court of New Hampshire. Hillsborough.

Nov. 1, 1932.

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

Actions of case by Arthur V. Dimock, and by Massachusetts Anti-Saloon League, and by Bernadette Demers against Paul Lussier, and by Bernadette Demers against Arthur V. Dimock. Trial by jury, and verdict for defendant Paul Lussier in each of the three actions against him, and verdict for plaintiff in action of Bernadette Demers against Arthur V. Dimock. Transferred on exceptions of Arthur V. Dimock and the Anti-Saloon League.

Judgment on the verdict in each case.

Four actions of case, to recover damages occasioned by a collision between automobiles driven by Arthur V. Dimock and Paul Lussier. Bernadette Demers was riding in Lussier's car at his invitation. The car driven by Dimock was the property of the Massachusetts Anti-Saloon League. The cases were tried together by jury. In each of the actions against Lussier there was a verdict for the defendant; in the case of Demers v. Dimock, a verdict for the plaintiff.

At the close of the evidence, all parties moved for directed verdicts. These motions were denied subject to exception. After the verdicts had been rendered, motions were filed by Dimock and the Anti-Saloon League praying that the verdicts in the actions to which they were parties be set aside as against the law and the evidence and the weight of the evidence, and because the jury were actuated by passion and prejudice. These motions were also denied subject to exception. Other exceptions relate to the charge and to the admission of certain evidence. The facts are stated in the opinion.

Hurley & Connor, of Manchester (A. J. Connor, of Manchester, orally), for Bernadette Demers.

Robert W. Upton and Lawrence I. Duncan, both of Concord, for Arthur V. Dimock and Massachusetts Anti-Saloon League.

Timothy P. O'Connor and Myer Saidel, both of Manchester, for Paul Lussier.

MARBLE, J.

The accident occurred at the intersection of Willow and Silver streets in Manchester on August 4, 1929. Willow street runs approximately north and south, and is intersected obliquely by Silver street. At the time of the accident Lussier was proceeding southward on Willow street, and Dimock was driving north. The testimony concerning the details of the collision is highly conflicting.

On the one hand, there is evidence from which it could be found that Lussier, traveling very slowly and signaling both with his motor horn and with his hand, turned to the left to enter Silver street, which extends from Willow street in a southeasterly course; that he saw Dimock approaching from the opposite direction about three hundred feet distant, and reasonably assumed that he had ample time to complete the turn in safety; that Dimock had an unobstructed view of the intersection, yet continued to advance rapidly, and crashed into Lussier's car, which was then nearly across the street, without the slightest warning.

On the other hand, Dimock's testimony tended to prove that his speed did not at any time exceed twenty-five miles an hour, and that he blew his horn when within twenty-five feet of the intersection. He stated that "without any warning of any kind" Lussier's car "shot out of the traffic" directly in front of him; that he immediately applied his brakes, sounded his horn again, and pulled his car to the right, that he had but a second in which to act, and that there was nothing he could have done that he did not do to avoid the collision.

At the trial, it was conceded "by counsel for both defendants that Miss Demers was in no way at fault."

Dimock was an employee of the Massachusetts Anti-Saloon League, and at the time of the accident was acting within the scope of his employment. The league in its action against Lussier for damage to its automobile is therefore chargeable with Dimock's conduct. Page v. Hodge, 63 N. H. 610, 4 A. 805.

The questions presented by the plaintiff's motion for a directed verdict in the case of Demers v. Lussier have not been argued, and the exception to the denial of that motion is understood to be waived. The motions of Dimock, Lussier, and the Anti-Saloon League for directed verdicts were properly denied. L'Esperance v. Sherburne, 85 N. H. 103, 104, 155 A. 203.

Obviously the evidence in favor of Dimock and the Anti-Saloon League was not of such overwhelming weight as to require the granting of the motions to set the verdicts aside. Bennett v. Larose, 82 N. H. 443, 136 A. 254; Morrell v. Gobeil, 84 N. H. 150, 147 A. 413.

It is claimed that certain alleged inconsistencies in the testimony of Lussier and Bernadette Demers bring the cases within the rule of Harlow v. Leclair, 82 N. H. 506, 136 A. 128, 50 A. L. R. 973. But this rule is manifestly inapplicable, where apparent contradictions are reconciled or absolute contradictions adequately explained. And such could be found to be the situation here. Lussier did not of course profess to state distances with absolute accuracy. Therefore the fact that Dimock must have advanced at a highly improbable rate of speed, if the estimate of three hundred feet was exact, did not destroy the force of Lussier's testimony on that point altogether.

Dimock and the Anti-Saloon League rely upon their exceptions to the following portions of the charge:

"The rights of the parties at this intersection were equal; neither had any superior right over the other. Mr. Lussier had as much right to turn to the left into Silver street as Dimock had to proceed north on Willow street. In the same way Dimock had as much right to proceed straight ahead as Lussier did to turn; their positions are equal there. So, if you rind in regard to Mr. Lussier that when he turned into Silver street he gave proper warning when he was about to make the turn, and at that time Mr. Dimock appeared to him to be so far away that he had time to make the turn in safety, then his action in making the turn could not be regarded as negligent. * * *

"I think the case might be summed up in this way: If you And this accident happened as Lussier says it did, then nobody ought to have any verdict against him, the verdicts would be for Lussier in all cases. If it happened the way Dimock says it did, then there must be no verdict against Dimock in any case. But you may not find it so simple as that;...