Halley v. Brown
| Decision Date | 06 January 1942 |
| Parties | HALLEY v. BROWN. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Rockingham County; Burque, Judge.
Action by Helen L. Halley against Clara J. Brown to recover for injuries sustained by plaintiff when bicycle on which she was riding was struck by defendant's automobile, wherein certain exceptions were taken by defendant and the case was transferred.
Judgment on the verdict.
Case, to recover for personal injuries sustained by the plaintiff at North Hampton Beach on August 24, 1939, when the bicycle on which she was riding was struck by the defendant's automobile. At the time of the accident the defendant was backing her car out of a parking space. Trial by jury and verdict for the plaintiff.
The defendant moved for a nonsuit and for a directed verdict. These motions were denied subject to exception. Exceptions were also taken to the denial of a motion for an order declaring a mistrial and to the allowance of certain portions of the argument of plaintiff's counsel to the jury. Transferred by Burque, C. J.
Sheehan & Phinney, of Manchester, and Arthur A. Greene, Jr., of North Conway (Mr. Greene orally), for plaintiff.
McLane, Davis & Carleton, of Manchester (John R. McLane, Jr., of Manchester, orally), for defendant.
The scene of the accident is concisely described in the defendant's brief. This description is substantially as follows:
The shore line at North Hampton Beach opposite the site of the accident runs approximately north and south. West of the ocean is the beach; west of the beach is a sea wall with steps leading up from the beach to the land above; west of the sea wall is a sidewalk ten feet in width and separated from the parking area by a curbstone; west of the sidewalk is the parking area, which slopes slightly to the west and is marked with yellow diagonal parking lines running in a northeast-southwest direction. This parking area is tarred and is fifty to sixty feet in width and about one mile in length. West of and adjacent to the parking area is the public highway known as Ocean Boulevard. This highway is twenty-four feet wide, thus making a continuous paved area from seventy-four feet to eighty-four feet in width measuring from the westerly edge of the public highway to the curbstone at the easterly edge of the parking area.
On the afternoon of the accident the defendant, who lived at Hampton Falls, took her three children to North Hampton Beach. When ready to return home, she backed her car out of the parking space and collided with the bicycle on which the plaintiff was riding. There was evidence that she realized "that there might be somebody on a bicycle riding in a northerly direction in back" of where her car was parked; that her view to the south was obstructed by another parked car; that she did not request her children, two of whom were on the back seat, to keep a lookout, and that she "backed out suddenly" without sounding the horn of her car or giving any other warning.
The plaintiff and three companions were riding northward from Hampton Beach toward Rye on bicycles in single file about three or four feet west of the line of parked cars. The plaintiff testified:
On the foregoing evidence the jury might properly find that the defendant was negligent and that her negligence caused the plaintiff's injuries. Golej v. Varjabedian, 86 N.H. 244, 246, 166 A. 287. Nor does the evidence compel the conclusion that the plaintiff was guilty of contributory fault. There is no claim that she was violating any provision of section 12 of chapter 90 of the Public Laws. She took some care for her own safety. Whether she did all that the average person would have done under like circumstances was a question of fact for the jury. Dorrien v. Sirois, 87 N.H. 144, 147, 175 A. 236. It follows that the motions for a nonsuit and directed verdict were correctly denied.
The defendant excepted "to the persistence" with which plaintiff's counsel asked a certain question relating to damages when the Presiding Justice had "ruled it out at least twice." In neither instance...
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