Fine v. Parella
| Decision Date | 03 March 1942 |
| Parties | FINE v. PARELLA. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Johnston, Judge.
Action for negligence by N. Marty Fine and General Exchange Insurance Corporation, plaintiff in interest, against Antonio Parella for injuries sustained by first-named plaintiff and damage to his automobile when it collided with the allegedly illegally parked automobile of defendant. Verdict for defendant, and case transferred from trial term on plaintiffs exceptions.
Judgment on the verdict.
Action, for negligence. The plaintiff's automobile collided in the nighttime with the defendant's car findably illegally parked ahead of him on his side of the roadway. An issue of defence was his contributory negligence. A jury found for the defendant.
The plaintiff excepted to the exclusion of certain offered evidence, to the refusal to give a requested instruction, to an instruction given in its stead, and to the refusal to exclude evidence of the plaintiff's carriage of collision insurance. Facts material to the exceptions are stated in the opinion. Transferred by Johnston, J Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robt. P. Booth, of Manchester, orally), for plaintiff.
Paul E. Nourie, of Manchester, for plaintiff in interest, filed no brief.
Devine & Tobin, of Manchester (John E. Tobin, of Manchester, orally), for defendant.
I. A police officer who investigated the accident testified for the plaintiff. In cross-examination he was asked if he had any interest in the case and he replied that he had none. Thereafter the plaintiff's offer of evidence to confirm the answer of the witness was rejected. The question in its form and substance neither charged nor asserted an interest, and no jury in the exercise of ordinary intelligence would infer an interest from the question. If the answer was disbelieved, yet it remained that there was no "testimony of counsel" from which interest could be found. The question instead of being of a "pernicious type", was a proper one often asked, and instead of being of the same character as that held improper in Carbone v. Boston & Maine Railroad, 89 N.H. 12, 192 A. 858, cited by the plaintiff, is in antithetic contrast with it.
II. The plaintiff requested an instruction that without notice to the contrary he had no duty of care to anticipate that another car on the highway would be operated or parked negligently or in violation of a statute. The instruction was not given and instead the jury were charged that the plaintiff "was obliged to anticipate the actual situation that he ran into only to the extent that the ordinary person of average prudence would have anticipated it". The instruction, as applicable to the case, was correct. When the operator of an automobile has his view ahead cut off, due care requires him not to exceed a speed at which operators in general drive. It is more or less the common understanding as matter of fact that an operator of an automobile should be on the watch for dangers carelessly as well as innocently caused by others according to the situation. There are many lapses of ordinary care in highway travel, and it may be said that everyone has notice of some likelihood of their occurrence. The careless conduct of persons, pedestrians as well as drivers of vehicles, is not of such rare occurrence that it is to be said as matter of law that in all cases there is no demand of safety to guard against encountering it until there is actual notice of it. If the probability of encountering it is great enough to induce the ordinary person to prepare to meet it, it is careless not to anticipate the need of preparation. Tullgren v. Amoskeag Mfg. Company, 82 N.H. 268, 276, 277, 133 A. 4, 46 A.L.R. 380.
The situation may be such that careless conduct of others is not a fair requirement of anticipation, and as a general principle this is the rule. McCarthy v. Souther, 83 N.H. 29, 31, 137 A. 445, and cases cited. Ordinarily one is not under a duty of care to be on the alert to meet invasions of his rights when he has not been threatened. In the McCarthy case it was thought that the general principle was applicable in passing on the conduct of the pedestrian. But . Himmel v....
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