Everett v. Littleton Const. Co. Townes

• Decision Date: 02 April 1946
• Docket Number: No. 3554.,3554.
• Citation: Everett v. Littleton Const. Co. Townes, 94 N.H. 43, 46 A.2d 317 (N.H. 1946)
• Parties: EVERETT v. LITTLETON CONST. CO. TOWNES v. SAME.
• Court: New Hampshire Supreme Court

46 A.2d 317

EVERETT

v.LITTLETON CONST. CO.

TOWNES

v.SAME.

No. 3554.

Supreme Court of New Hampshire.

Feb. 21, 1946.

Rehearing Denied April 2, 1946.

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

Consolidated actions on the case by Jesse I. Everett against Littleton Construction Company and by William A. Townes against same defendant, for negligence.Verdicts were returned for both plaintiffs, and the actions were transferred on defendant's exceptions.

Judgment on the verdicts.

Case, for negligence.The collision involved in these two actions happened Nov. 6, 1941 in the town of Hill.The defendant company under a contract with the State was building a new highway about eight miles long southerly from Bristol through Hill to a point in Franklin.The right of way was one hundred feet wide and the pavement or hard surface portion twenty-two feet in width.During construction the new road was closed to the public.Mr. Harold W. Ingham, the engineer whose duty it was to open the new road to traffic, testified that he did not order it opened until Nov. 9, 1941, three days after the accident.About three miles southerly of the northerly end, the new road was intersected at a slight angle by a highway leading from South Alexandria to Hill.The traveled part, twelve feet in width, of this road coincided with the layout of the new road for a distance of over six hundred feet.Its right of way was three rods wide.There was no evidence that it had been closed to the public for travel.According to substantial evidence the accident occurred at the intersection of the middle line of the pavement of the new road with that of the traveled way of the South Alexandria highway, as it was previous to the construction of the new approach, about 5:30 in the afternoon.

An employee of the defendant by means of a Ford truck was towing a six ton compressor southerly on the road under construction to a repair shop.The compressor, fourteen feet in length, had four wheels but was without motive power.It was used for rock drilling.It had become unhitched from the truck and had swerved to the right with its right front wheel off the pavement and the rear projecting over the center line.

The plaintiff Everett traveling from Plymouth to Concord drove his Studebaker Champion two-door sedan southerly on the road under construction and collided with the projecting left rear corner of the compressor.The plaintiff Townes was his passenger and was seated on the front seat to his right.

The jury that tried the two cases together had a view and returned verdicts for both plaintiffs.The defendant excepted to the denial of its motions for nonsuits, for directed verdicts and that the verdicts be set aside.It also excepted to rulings admitting and excluding evidence, to rulings with respect to certain portions of the plaintiffs' argument, to certain instructions to the jury and to the failure to instruct as requested.The questions of law raised by these exceptions were reserved and transferred by Connor, J. Murchie & Murchie, of Concord (Alexander Murchie, of Concord, orally), for plaintiffs.

Maurice F. Devine and Joseph A. Millimet, both of Manchester (Joseph A. Millimet, of Manchester, orally), for defendant.

JOHNSTON, Justice.

During the trial much time was given to the issue of whether the new road had been opened for highway travel prior to the accident on November 6, 1941.It could readily be found that the point of the collision was within the traveled part of the way from South Alexandria to Hill and that this highway had not been closed to the public.In fact, it was in use for traffic both north and south.The lowering of the grade of the new road made inaccessible the southerly portion of this other highway but an approach for the northerly portion was built to the new road, which was used southerly of that point.This approach was in use at the time of the accident and there was traffic in both directions.It resulted from the building of this approach more than three hundred feet north of the place of the accident that traffic on the South Alexandria layout southerly to the scene of the accident took the same course that was designed for traffic on the new road.From the locus of the collision northerly to the intersection of the westerly side of the pavement of the new road with the easterly side of the right of way of the South Alexandria road, it was one hundred and seventy-five feet.The westerly and easterly sides of the two rights of way respectively intersected three hundred and seventy feet northerly from the same locus.In other words, if the sedan went south on the westerly edge of the pavement, it reached the highway that was open one hundred and seventy-five feet northerly of the place of the collision.The fact that the plaintiffs approached over a way that may not have been open to them is immaterial.

Within the layout of the South Alexandria highway the plaintiffs were entitled to the protection of the applicable statutes that were for the safety of highway travelers.They were making a viatic use of this highway.Ordinarily this is a question of...