Eastman v. Herrick

• Decision Date: 28 June 1934
• Citation: 173 A. 807
• Parties: EASTMAN v. HERRICK.
• Court: New Hampshire Supreme Court

173 A. 807

EASTMAN

v. HERRICK.

Supreme Court of New Hampshire. Merrimack.

June 28, 1934.

Transferred from Superior Court, Merrimack County; Young, Judge.

Action for negligence by Perley Eastman against Robert Herrick. Verdict for plaintiff, and the court transferred exceptions of the defendant to the denial of his motion for directed verdict and to alleged errors and omissions of the charge.

Judgment for plaintiff.

Action for negligence. Trial by jury and verdict for the plaintiff. The defendant's automobile collided with the plaintiff's horse-drawn vehicle on a highway in Hillsborough in the nighttime. No light was attached to the vehicle, and the plaintiff undertook to disclose his presence as the car approached by the use of a flash-light held in his hand.

The court transferred exceptions of the defendant to the denial of his motion for a directed verdict and to alleged errors and omissions of the charge.

Laurence I. Duncan and Robert W. Upton, both of Concord, for plaintiff.

Demond, Woodworth, Sulloway & Rogers, of Concord, for defendant.

ALLEN, Justice.

The plaintiff's vehicle was one which by the statute (Pub. Laws, c. 90, § 5) "whether stationary or in motion, on any public highway or bridge, shall have attached to it a light or lights, which shall be so displayed as to be visible from the front and rear" during the time of day from thirty minutes after sunset to thirty minutes before sunrise.

The claim that the plaintiff's use of a flashlight was a substantial compliance with the statute is not sustained. It would disregard the order made positive and definite without qualification that the light shall be attached to the vehicle. The lighting is to be continuous whether the vehicle is moving or at rest, and is to be visible continuously from both front and rear. To secure these conditions, attachment is a practical need, for which substitutions would seem inadequate. No evidence of a legislative intent to permit other arrangements or methods generally or on particular occasions appears. No exception is made even when the city street is bright with artificial lights or the country road diffused with moonlight. If there might be substitutions, a flash-light held in the hand can hardly furnish light visible ahead and behind at the same time.

Upon the inquiry whether the statute enacts that any injury occurring during its violation shall be held to be caused thereby, it is argued that the rule of causation declared in Johnson v. Railroad, 83 N. H. 350, 143 A. 516, 61 A. L. R. 1178, to be prescribed for unlicensed driving of motor vehicles should be found to be adopted by the Legislature for un-lighted vehicles. In the Johnson Case, license for operating a motor vehicle on a highway was held to be so imperative a demand of the statute in its design to secure safety of travel that its violation was thereby made causal "in the strictest sense."

The statutory mandates that vehicles be equipped with lights are of course intended to aid in making highway travel safe, and they have no other purpose. Without considering how far the statutory purpose of revenue and identification in the requirement of registration of motor vehicles as decided in Clark v. Hampton, 83 N. H. 524, 145 A. 265, 61 A. L. R. 1171, has been broadened to include safety by legislation (Laws 1933, c. 105; Laws 1931, c. 80) enacted since the decision, the statute requiring vehicles not self-propelled to have lights attached to them is a regulation to protect their occupants more than others. The danger of injury to others in driving by such means of travel is not relatively great. The amount of horse-drawn travel is comparatively slight. Occupants of a team and bicycle riders are more likely to be hurt than to hurt others in a collision with a motor vehicle. It is more important for them to be seen than to see with the aid of lights.

The statute requires that the lights of such vehicles shall be visible, without specifying the distance to which they shall throw the light and without defining their strength, while for motor vehicle lights there are detailed requirements, as has been said. Selectmen may exempt the owner from observance of the statute (Pub. Laws, c. 90, § 6), and the penalty for violation is almost nominal (Id. § 9). The statute was not enacted until after the advent of motor vehicles. Its design is apparent to safeguard against some of the perils from them more than to protect them. It seeks mainly to limit their victims.

It is accordingly not fair to assume that the duty of lighting in respect to teams and bicycles is commensurate with that in respect to motor vehicles. Whatever the sanctions of the latter duty may be,...