Frost v. Stevens

• Decision Date: 07 May 1936
• Citation: Frost v. Stevens, 88 N.H. 164, 184 A. 869 (N.H. 1936)
• Parties: FROST v. STEVENS.
• Court: New Hampshire Supreme Court

184 A. 869

FROST

v. STEVENS.

Supreme Court of New Hampshire. Hillsborough.

May 7, 1936.

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

Action by Ida May Frost against Horace M. Stevens. From an adverse judgment, the plaintiff appeals.

New trial.

Case, to recover for personal injuries alleged to have been caused by the defendant's negligence. A trial by jury, after a view, resulted in a verdict for the defendant.

Young, J., transferred the plaintiff's exceptions to the charge as given, to the failure to charge as requested and to the allowance of portions of the argument of counsel for the defendant. Other exceptions taken during the course of the trial and transferred have been neither briefed nor argued, and are understood to hare been waived.

The facts appear in the opinion.

Willoughby A. Colby, of Concord, for plaintiff.

Devine & Tobin and John E. Tobin, all of Manchester, for defendant.

WOODBURY, Justice.

The plaintiff, while walking west on the southerly crosswalk at the intersection of Hanover and Chestnut streets in Manchester, came into collision with the front of the defendant's automobile which he was driving south on Chestnut street. Traffic at that intersection was controlled by a system of automatic electric signal lights which were in operation at the time of the accident. It was raining at that time and the plaintiff, who was over seventy years of age, had her umbrella up.

She testified that before she stepped off the curb into the traveled part of Chestnut street she stopped until the traffic lights were in her favor. As soon as they were, she looked both north and south along that street, and, seeing no cars in either direction, started across. Just before she reached the middle of the street she stopped and again looked in both directions. Still seeing no cars approaching, she proceeded on her way until she was struck, which occurred when she was only a short distance beyond the center of the street. She did not see the defendant's car until the moment of impact.

According to the defendant's version of the accident, he first saw the plaintiff when she was standing on the curb preparing to cross Chestnut street. He was then north of the intersection. Following this, his attention was taken up with other travel at the intersection and with the traffic lights which he said were in his favor. He proceeded into the intersection going ten to twelve miles per hour, and when about halfway through it again saw the plaintiff. At that time she was about one-third of the way across Chestnut street, was "hesitating," and appeared to be confused. The defendant, nevertheless, said he thought the plaintiff saw him and would let him pass in front of her. Thereafter the defendant's attention was again taken up with other traffic and he proceeded on his way at between five and ten miles per hour. When he next saw the plaintiff, she was from two to five feet in front of his car. He at once applied his brakes, but could not stop in time to avoid striking her.

I. The plaintiff contends that under the above facts her request for an instruction based upon the doctrine of the last clear chance was improperly denied.

The question raised by the denial of this request is whether or not there is evidence from which the jury could find that the defendant was actually aware of the plaintiff's peril and of her inability to extricate herself from it at a time when due care required and time afforded an opportunity for him to take saving action.

Upon the first occasion when the defendant saw the plaintiff, she was on the curb, and he was north of the intersection. There was nothing about this situation to indicate that she was about to put herself into a position of danger, and so the doctrine does not apply. Olsen v. Railroad, 82 N.H. 120, 124, 130 A. 213, and cases cited. When the defendant saw the plaintiff just prior to the collision, she was two to five feet in front of his car, and it was then too late for him to do anything to avoid striking her.

The question arises as to the second time he saw her. It could be found that she was then about one-third of the way across the street, was hesitating, and appeared to the defendant to be confused. At that time he was about twenty feet from her, and it is conceded that he could have stopped without striking her. The reason which the defendant gave for not stopping at that point is that he thought that the plaintiff saw him and was going to let him pass in front of her. This is a reasonable explanation of his conduct, and, if believed by the jury, would warrant the finding that due care did not require him to stop. On the other hand, there was evidence that the defendant thought she was confused. This would warrant the finding that he knew of her danger, and, consequently, would warrant...