Humphreys v. Ash

• Decision Date: 02 May 1939
• Docket Number: No. 3073.,3073.
• Citation: Humphreys v. Ash, 90 N.H. 223, 6 A.2d 436 (N.H. 1939)
• Parties: HUMPHREYS v. ASH.
• Court: New Hampshire Supreme Court

6 A.2d 436

HUMPHREYS

v. ASH.

No. 3073.

Supreme Court of New Hampshire. Hillsborough.

May 2, 1939.

[Copyrighted material omitted.]

Transferred from Superior Court, Hillsborough County; Johnston, Judge.

Action on the case for negligence by Albert Humphreys, administrator, against Joseph Ash, for death of plaintiff's intestate, a minor, who while crossing street was struck by automobile driven by defendant.Verdict for plaintiff for $5,000.Transferred upon defendant's exceptions.

New trial ordered.

Case, for negligence in causing the death of the plaintiff's intestate, a child of four years and nine months, on July 18, 1937.Trial by jury" and verdict for the plaintiff in the sum of $5,000.The defendant excepted to the denial of his motions for a nonsuit and for a directed verdict, to the admission of certain evidence, to the argument of the plaintiff's counsel, to the charge given, to the failure of the court to grant certain of his requests for instructions, and to denial of his motion to set the verdict aside.The facts appear in the opinion.Transferred by Johnston, J.

McLane, Davis & Carleton, of Manchester (John P. Carleton, of Manchester, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robt. P. Booth, of Manchester, orally), for defendant.

PAGE, Justice.

Taking the evidence most strongly for the plaintiff, the following facts appear: On the Sunday evening when the accident occurred, the deceased and his seven-year-old brother, who lived with their parents on Boynton Street in Manchester, were playing in a neighbor's yard across the street from their home.It became dark enough so that the street-lights were on and some, if not all, of the passing automobiles also showed lights.Boynton Street, running north and south, was at the time a part of Route 101 and was "much travelled".

The mother of the boys went to the front porch of her house on the westerly side of the street and called for them to come home.The boys came to the easterly curb, but the mother, seeing three cars approaching from the south, ordered the children not to proceed, but to wait for the cars.Immediately after the third car passed northerly, Bruce, the decedent, ran into the street and was hit by the car of the defendant, which was being driven southerly.

The speed of the defendant's car was variously estimated, by the defendant at between twenty-five and thirty miles an hour, by the mother at thirty-five.The defendant did not see the decedent until he darted out from behind the third north-bound car, at a distance of about twenty-five feet from him.He thought at first that it was an animal and immediately set his four-wheel brakes and kept them set with all his power until he had come to a stop.Not until he was within ten feet did he recognize the fact that the decedent was a boy.The boy was hit with such force that he was thrown about twenty-five feet.There was no evidence that the defendant could have done, anything to avoid the accident after he saw the boy dart from behind the north-bound car.Consequently the only issue concerning the defendant's negligence was that concerning the speed at which he was driving before he saw the boy, and the jury were so instructed.

Upon the issue of speed the plaintiff called Patrick J. Foley, inspector in charge of the Accident Prevention Bureau of the Manchester Police Department.He testified to having gone to the scene of the accident soon after it occurred and to having measured the brake marks left by the defendant's car.They extended without interruption for a distance of sixty-six feet.He also testified that within three hours he made two tests of the brakes of the defendant's car, and that he made others the next morning.All tests were made upon streets with the same type of surface as existed at the place of the accident.He had made similar tests with other cars over two hundred times.His qualifications as an expert were not questioned.

Mr. Foley was asked: "Assuming a condition of the highway, such as you found it on the night of the accident, in front of the Humphreys' home, and assuming the brakes of the Ash car were in good condition; and, assuming that the operator of the car put the brakes on as hard as he could, and that the car travelled a distance of 66 feet before it came to a stop, showing brake marks for that distance, what, in your opinion, was the speed of that car, just before the brakes were applied?"The defendant objected: "Even though this man is an expert, it is simply speculation."The answer, admitted subject to exception, was: "Approximately forty-five miles an hour."

The plaintiff emphasizes the thought that the tests made by the witness were with the defendant's car, and that the witness consequently was specially qualified to answer.But the witness did not describe the tests more than to say that the places where they were made had surface conditions similar to those at the place of the accident.As to the pressure exerted by the defendant it is apparent that he depressed the brake enough to result in distinct solid tracks.As to that exerted by the witness in the tests there is no evidence.While the atmospheric conditions when the evening tests were made can be assumed to be similar to those at the time of the accident, there can be no assumption that they were the same the next morning.It is not disclosed whether the weight carried in the car was the same on all three occasions, or whether the air-pressure in the tires gave similar resistance.There is no intimation whether the grade of the places of the tests was comparable to that where the accident occurred, though there is evidence that the surfaces were similar.The results of the tests were not offered as experimental evidence, and the court did not have occasion to rule upon them as such.

The hypothetical question did not assume the condition of the brakes of the defendant's car disclosed by the tests, but assumed only that they were in good condition.The plaintiff is not, therefore, in a position to argue, as he has, that the tests made by the witness gave him peculiar qualifications to answer the question with respect to this particular car.Even if he had such qualifications, the question did not proceed upon that theory.The answer given, that the brake-marks resulted from a speed of forty-five miles an hour, appeared upon cross-examination to differ widely from those indicated by the tables that are commonly the basis of expert testimony.Mr. Foley admitted that, according to those tables, brake-marks sixty-two feet in length reflect a speed of thirty miles an hour.He attempted to evade the effect of this by saying that four-wheel brakes which would stop in that distance a car going at that speed were sufficient to meet the requirements of the Motor Vehicle Department.By this must be understood standard braking power.Brakes of less efficiency could not be said to be in good condition.But the hypothetical question assumed good condition.Further, the plaintiff specifically admitted that the brakes were in good condition, and it was not claimed that they were super-adequate.Mr. Foley admitted on cross-examination that a stop in 112 feet at forty-five miles an hour reflects good braking power.As he further admitted, his testimony comes to this: either the actual speed was far less than he stated it to be, or the defendant's brakes were nearly twice the standard efficiency.Whether the one or the other inference is to be drawn is purely speculative.That drawn by the witness would be reasonable only if there were evidence that the brakes were super-efficient, and this was not suggested or claimed.The answer was speculation, since it was based upon "good condition", and the objection made was sound, as matters turned out.But as the character of the answer did not appear until after cross-examination, the defendant's exception cannot now be of avail.After its character appeared, the defendant should have moved to strike out the testimony.

Nevertheless a speed of forty-five miles an hour could be inferred only by conjecture.Upon the evidence, the only non-conjectural speed was something more than thirty miles an hour, or possibly something more than thirty-five miles an hour, the higher figure being inferable from the mother's estimate of thirty-five miles, made upon momentary observation at a time of great excitement, when the car was ten or fifteen feet from her son, and after the brakes had been applied.

It was a question for the jury whether that speed was reasonable.Laws 1937, c. 125, § 1.But liability finally rests upon the actual effectiveness of the speed, if unreasonable.The effect of a less speed invites investigation.According to the evidence, standard braking power permits a stop at twenty-five miles an hour within forty-three feet of the point of application.Mr. Foley said that the defendant could have stopped at that speed in between twenty and twenty-five feet.Having in mind his other testimony, it would not seem to be findable without conjecture that at twenty-five miles an hour the defendant could have stopped his car before reaching the point where the boy was hit.As to any speed less than twenty-five miles an hour, the stopping-distance is purely speculative.

The plaintiff argues that if the defendant had veered left, instead of very slightly right (as he did), the accident would have been avoided.The defendant's right fender was dented, from which it could be inferred that the boy was nearly clear when struck.The boy was...