Gendron v. Glidden

• Decision Date: 05 November 1929
• Parties: GENDRON v. GLIDDEN.
• Court: New Hampshire Supreme Court

148 A. 461

GENDRON

v. GLIDDEN.

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1929.

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

Case by Laura Gendron against Martin W. Glidden. Verdict for plaintiff, and defendant brings exceptions. New trial.

Case, to recover damages for personal injuries sustained by the plaintiff in a collision of automobiles at an intersection of streets in the city of Nashua. There was a verdict for the plaintiff. Exceptions taken by the defendant to the charge and to the denial of his motion for a directed verdict were allowed by Young, J. The jury had a view of the scene of the accident. Further facts appear in the opinion.

Thos. J. Leonard and Albert Terrien, both of Nashua, for plaintiff.

Hamblett & Hamblett, Alvin A. Lucier, and Robert B. Hamblett, all of Nashua, for defendant.

SNOW, J. The accident occurred at the intersection of Harbor avenue, running north and south, with Bowers street, which crosses it at right angles. As limited by the curbings, the traveled portion of the former is 38 and of the latter 23 or 24 feet. Sidewalks border each street.

The plaintiff was one of four invited guests riding in an Oakland touring ear driven by her brother-in-law, one Pelletier, who was its owner. He was proceeding southerly on the right-hand side of Harbor avenue. As the front end of his engine reached the southerly curbing of Bowers street, the right rear wheel of his car was hit by the bumper and right forward wheel of the defendant's car, which was proceeding easterly on the right-hand side of said street. The defendant was driving and alone.

The Impact turned the Pelletier car halfway around, leaving it in the middle of the avenue facing north and about its length south of its position at the instant of the collision. The plaintiff, who was the middle one of the three occupants of the rear seat, was thrown against the front seat and into the bottom of the car, while the occupant to her left was thrown completely out of the car and rendered unconscious. The others remained in the car. The rear end of the chassis was bent. Though able to proceed on its own power, the car was "knocked out of commission." The defendant's car was stopped within the limits of the avenue without material change in its course. The right-hand end of the double-bar bumper thereon was twisted and turned up.

The view of a traveler, approaching either from the north or the west, was partially obstructed by a large tree at the northwest corner of the Intersection, a smaller tree 25 feet westerly on Bowers street, and an intermediate fence.

Pelletier testified that he had received the members of his party two blocks away; that up to a point 25 feet from Bowers street he had been traveling at 15 miles per hour; that before reaching the intersection he reduced his speed to 10 miles, and continued at that rate to the place of collision; that, as he approached Bowers street, he looked to his right and saw the defendant's car coming at a point about two or three times farther away from his line of travel than he (Pelletier) had to go to make the crossing; that he thought it was safe to cross, and thereupon looked to his left, giving no further attention to the defendant. As respects the defendant's speed and Pelletier's knowledge of it, the latter's testimony was conflicting. He stated that he knew the defendant was coming "fast" or "quite fast," but both on direct and cross-examination he explained that his knowledge on this point was based on "the way he [the defendant] hit my car." and finally declined to say whether the defendant was coming fast or slow. Mrs. Pelletier, who occupied the front seat with her husband, testified that, when 25 feet from Bowers street, she saw the defendant's car at the top of the hill to the west, which was shown to be 475 to 500 feet from the avenue; that when she got to the corner she looked again and saw the car "almost" or "quite a ways" down the hill, but still distant "two or three times further than we was across the street," and "going quite a rate of speed," which she, however, declined to estimate. The plaintiff testified that when crossing Bowers street she saw the defendant when two or three times as far away as they were, "way up Bowers street," that he was coming "awfully fast," but that she thought that they "had plenty of time to cross." The other occupant testified that before the Pelletier car arrived at the intersection she saw the defendant's car coming down the hill "very fast."

The defendant testified that he was proceeding down Bowers street at a speed of from 15 to 18 miles per hour, and that, as he approached the intersection, he slowed down to 8 to 10 miles; that he looked to his left and saw no car, then to the right, and (to use his language) "then when I looked straight ahead this car was right in front of me"; that the view to his left was so obstructed by the fence and the tree at the corner that he could not have seen the Pelletier car until he got within "somewhere between 10 and 15 feet" of the avenue. He conceded that, had he looked when within that distance, he could have seen the car, but testified that his view to the right was obstructed by a small house situate "twenty feet or so" westerly of the avenue, upon passing which he looked to his right, and, relying upon the law of the road applicable to highway intersections, did not again look to his left; that, upon seeing the Pelletier car right in front of him, he immediately applied his brakes, turned to the left in an effort to avoid a collision, and stopped his car as soon as possible after the impact.

The defendant was an automobile mechanic, and had had large experience in driving cars. He had been accustomed to cross the intersection in his travel to and from the garage at which he was employed several times a day for the seven years immediately preceding the accident, and knew the intersection was "a bad corner."

1. Pub. Laws 1926, c. 90, § 3, provides, "If a person traveling on a highway with a vehicle approaches an intersecting way, * * * he shall grant the right of way, at the point of intersection, to vehicles approaching from his right; provided, that such vehicles are arriving at the point of intersection at approximately the same instant. * * *"

The court having defined the "point of intersection" as "the area included within the side lines of the streets extended, and in this case the area which would be in either street if the other was eliminated," instructed the jury as follows: "In view of the fact that the statute says that this rule is applied provided the vehicles are approaching the point of intersection at approximately the same instant, it follows, as a matter of course, that if the vehicle on the left has entered into the point of intersection then its right is as good and equal to that of the vehicle on the right. So that, under such a situation, the rule would be the ordinary rule of due care, one having no greater right than the other, and each being bound to exercise a reasonable degree of care toward the other travellers on the highway. * * * The idea that I was intending to convey was, * * * if the party on the left had entered into the point of intersection that is, into that square, before the party on the right reached the point of intersection, they were not both reaching the point of intersection at approximately the same instant; then the party on the left would have as good a right, or rights equal to that of the one on the right, and the law of due care and reasonable conduct would apply just the same as if there were no statute, because the statute only applies when they are reaching this point of intersection at approximately the same instant. If the driver on the left was already in the intersection before the one on the right got to it, the party on the left is not obliged to stop and withdraw and allow the other to proceed. The party on the left has the same rights in that situation as the other driver has, and each must exercise a reasonable degree of care toward each other and toward travellers."

The charge gave the jury to understand that, if it were found that the vehicle on the left had entered the square formed by the side lines of the intersecting streets before the ear to the right reached this area, the statute had no application; for the...