Dow v. Latham

• Citation: 120 A. 258
• Parties: DOW v. LATHAM.
• Decision Date: 05 December 1922
• Court: Supreme Court of New Hampshire

120 A. 258

DOW

v. LATHAM.

Supreme Court of New Hampshire. Hillsborough.

Dec. 5, 1922.

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

Action by Perley D. Dow, administrator, against Robert G. Latham. Verdict for plaintiff, which was by the court reduced, and to an order refusing to further reduce the verdict or to set it aside because produced by passion and prejudice or mistake, defendant excepts. Exceptions sustained, and new trial granted.

Case for negligently causing the death of the plaintiff's intestate, a child of 10 years of age, who was killed about 8 p. m. August 4, 1919, by collision with an automobile which the defendant was driving westerly on Hanover street in Manchester. Westerly of the junction of Hanover street and Lake avenue, three streets, Salisbury, Garmon, and Gertrude, intersect with Hanover from the north. Trial by Jury before Sawyer, J., who transferred the exceptions stated below.

The collision occurred between Garmon and Gertrude streets. The decedent was at the time running in the street, rolling a hoop. The grounds of negligence charged were that the driving lights of the defendant's automobile were not in use, the side lamps only being lighted; and the failure of the defendant to signal by the horn of the automobile upon approaching the Intersecting ways called Salisbury, Garmon, and Gertrude streets. The defendant's motion for a directed verdict, made at the close of the evidence, was denied subject to exception. The defendant requested the court to instruct the jury not to find the defendant in fault because of his disobedience of the statute upon approaching the streets named, because no evidence had been introduced that the streets were ways as defined in the statute, and excepted to the refusal to give this instruction and to the instruction that the streets named were intersecting ways within the meaning of the statute. The jury found a verdict for the plaintiff for $8,000, which the court reduced to $7,000. The defendant excepted to the refusal of the court to further reduce the verdict or to set it aside because produced by passion and prejudice or mistake.

Doyle & Doyle, and Paul J. Doyle, all of Nashua, for plaintiff.

Warren, Howe & Wilson, and De Witt C. Howe, of Manchester, for defendant.

PARSONS, C. J. There was no error in the denial of the motion for a directed verdict. Whether at the place and time operating an automobile without driving lights was careful or careless was a question of fact upon which there was conflict in the evidence, as there was also as to the amount of light. It does not conclusively appear that it was so light at the time of the accident that reasonable men might not conclude that prudence in the operation of a car in that place required the use of driving lights. Upon the account of the accident given by the defendant and his friends, occupants of the car, it might be difficult to find that the absence of the driving lights, if negligent, was cause for the injury. Their evidence tended to prove that the decedent came from behind a car in front, running with his head down directly toward the defendant's car, and ran into it, and that he could not have been seen earlier if the driving lights were on. Another witness gave an entirely different and inconsistent account of the accident. Her testimony was to the effect that the decedent was driving his hoop on the right-hand side of the street, going in the same direction that the defendant was, and that the defendant came up from behind and struck him. While if her recollection of the place on the highway were she saw the decedent was correct, he must have suddenly moved into the street to be struck as he was, it could have been found, If this witness was believed, that with the driving lights on the decedent might have been seen in season for the defendant to have warned him of the approach of the car, as required by statute "upon approaching a pedestrian who is upon a traveled part upon a highway and not upon a sidewalk" (Laws 1915, c. 129, § 7), so that the decedent might have escaped with his life, even if the defendant could not have stopped the car so as to otherwise avoid a collision. The statute (Laws 1919, c. 161, § 5) prohibits the operation of a motor vehicle "so that the lives or safety of the public might be endangered." Operating such a vehicle wthout driving lights in such darkness that members of the public who might be in its path could not be seen in season to profit by the warning which it was the duty of the motor's driver to give might be found to be a violation of this statute and negligence. It is true there was evidence the occupants of a car preceding the defendant's did not see the decedent where the witness said she did. This is conflict, not absence, of evidence. Goy v. Director General, 79 N. H. 512, 515, 111 Atl. 855.

The defendant's contention that the decedent was not making a viatic use of thehighway needs little attention. He was at least in the words of the statute "a pedestrian upon the traveled part upon the highway." If he was using the highway for pleasure, so was the defendant: the only difference between them appears to have been that the defendant was driving four wheels, while the decedent drove but one. No principle of law has been suggested by force of which the additional three wheels gave the defendant superior rights in the way.

The charge of the court is reported in full and the defendant contends that this submitted only three questions to the jury, and that by force thereof the plaintiff waived all grounds of negligence not expressly set forth in the charge. The only method by which advantage can be taken of what was said or not said in the charge to the jury is by exception. Speares Sons Co. v. Railroad, 80 N. H. 243, 244, 116 Atl. 343.

If no exception is taken, there is no occasion to print the charge in the record, and it is presumed that the charge was correct, or at least satisfactory to the excepting party. In this case the charge is made a part of the record. If on examination errors of law appear, the presumption still remains, so far as no exceptions were taken, that the party now objecting was satisfied with the manner in which the case was submitted to the jury. The charge confines the plaintiff to the specific acts of negligence set forth in the writ, which are stated to be the failure to have such headlights in operation as the law requires, and the failure to give warning by sounding the horn or signaling devices required by law. This fairly states the contentions of the plaintiff in the writ and under the evidence. The charge, however, fails to inform the jury that the law required the defendant to use reasonable care in providing such lights as were necessary for the safe operation of his car with due regard to other users of the highway, or to tell them of the statutory prohibition against operating an automobile so that the lives or safety of the public might be endangered above referred to, but states to the jury the specific requirements of the statute that automobiles shall display at least two lighted lamps on the front of the car, from one-half hour after sunset to one-half hour before sunrise, and that the front lights shall be sufficient to be visible at least 200 feet in the direction in which the motor vehicle is proceeding. Laws 1917, c. 229. § 6. The defendant's car was equipped with lights, called signal or side lights, and there was no evidence that they were not visible for the distance required by statute. The evidence was that lights of this character were visible to a distance in excess of the requirements of the statute, and that these lights on the defendant's car were seen just before the accident by the occupants of another car, distant more than 200 feet. The evidence conclusively established the defendant's compliance with the statute, the, violation of which the charge permitted the jury to find and consider as a ground of negligence. Exception thereto must have been sustained. But no exception was taken, and the objection is waived. The absence of exception also disposes of the objection now made that there was no evidence that the defendant might have avoided the injury after discovering the decedent. Bourassa v. Railroad, 75 N. H. 359, 74 Atl. 590.

The defendant contends that a party cannot here stand upon a ground of negligence not presented at the trial. Richard v. Amoskeag Co., 79 N. H. 380, 109 Atl. 88, 8 A. L. R. 1426; Gage v. Railroad, 77 N. H. 289, 90 Atl. 855, L. R. A. 1915A, 363. And he argues that a verdict must be ordered for him in the absence of evidence sufficient to sustain either of the three specific questions which the charge submitted to the jury, violation of the statute as to light and signals, and defendant's ability to have prevented the injury after discovering the decedent. But the principle invoked by the defendant does not apply. Whether the defendant should have had his headlights in operation or not was the issue made by the pleadings and the evidence, and submitted to the jury. The error of the court was in the grounds presented by him to the jury for the determination of this question. It may be that knowing the evidence conclusively established the statutory sufficiency of the defendant's lights, counsel preferred the case should stand upon that ground rather than upon an exposition of the common-law rules and statutory provisions under which the jury might properly have found the headlights should have been in use, and that the failure so to use them was negligence causing the injury. Whatever the reason was, counsel elected not to raise the question, and it is not here.

The defendant excepted to the question "how far ahead those headlights would throw." The only lights previously mentioned were the side lights. If the question referred to these lights, and to their legal sufficiency under the statute, the exception...