Fontaine v. Charas

• Decision Date: 05 November 1935
• Parties: FONTAINE v. CHARAS (two cases).
• Court: New Hampshire Supreme Court

181 A. 417

FONTAINE

v. CHARAS (two cases).

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1935.

Exceptions from Superior Court, Hillsborough County; Lorimer, Judge.

Two actions on the case for negligence by Lyman A. Fontaine, administrator, and Lyman A. Fontaine against Victor G. Charas. Verdict for plaintiff, and defendant brings exceptions.

Judgment on the verdict.

Two actions on the case, for negligence. A trial by jury, after a review, resulted in a verdict for the plaintiff.

These actions are for personal injuries and expenses, and for loss of consortium, which resulted from an automobile accident in which the plaintiff's deceased wife was involved. Just prior to the accident she was riding on the front seat of the defendant's car which he was driving in a westerly direction on Candia road in Manchester. The defendant brought his automobile to a stop near the crest of a hill on a curve without driving it off the paved portion of the highway, although it was practicable to do so at that point. While it was so stopped one Perreault drove his car into it from behind and the plaintiff's intestate was injured. The accident happened about midnight on June 8, 1932.

The defendant seasonably moved for a nonsuit and for a directed verdict and seasonably excepted to the denial of these motions. His bill of exceptions was allowed by Lorimer, J.

A. J. Connor, of Manchester, for plaintiff.

Timothy F. O'Connor and Myer Saidel. both of Manchester, for defendant.

WOODBURY, Justice.

At the trial neither party offered any evidence either as to the decedent's conduct at the time of the accident or as to her knowledge of the dangerous situation created by the defendant when he stopped his car upon the traveled part of the highway. In fact, the record shows no more than that the decedent was in the car at the time it was run into by Perreault, and that the car was at that time under the control of the defendant. Under these circumstances the issue of contributory negligence is not raised (P. L. c. 328, § 13; Hayes v. New England T. & T. Co., 86 N. H. 486, 491, 174 A. 49), and therefore the plaintiff is entitled to recover if the defendant was guilty of causal fault.

The defendant contends that the accident was due solely to the negligence of Perreault; the plaintiff that it was due, in part at least, to the fault of the defendant in bringing his car to rest on the paved part of the highway in violation of Laws 1927, c. 76, § 3.

The statute relied upon by the plaintiff reads as follows: "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway." It then goes on to provide that in no event shall any vehicle, whether attended or not, be parked or left standing upon any highway unless a clear view of it may be obtained from the highway for a distance of at least two hundred feet in each direction, and, further, that if the vehicle is stopped on a main highway, then, in addition to the view, there must be at least ten feet of clear space left on the traveled portion of the highway for the passage by it of other vehicles. The final paragraph of the statute makes it inapplicable to vehicles temporarily left on the traveled part of a highway when disabled by mechanical failure.

The record is clear to the effect that it was "practicable" for the defendant to have driven his car off of "the paved or improved or main traveled portion" of the...