Keller v. DeLong

• Decision Date: 18 July 1967
• Docket Number: No. 5571,5571
• Citation: 108 N.H. 212,231 A.2d 633
• Parties: O. Pitman KELLER, Adm'r. v. Carl E. DeLONG, Jr.
• Court: New Hampshire Supreme Court

Page 633

231 A.2d 633

108 N.H. 212

O. Pitman KELLER, Adm'r. v. Carl E. DeLONG, Jr.

No. 5571.

Supreme Court of New Hampshire.

Argued May 2, 1967.

Decided July 18, 1967.

Wescott, Millham & Dyer, Laconia (Harold E. Wescott, Laconia, orally), for plaintiff.

Wiggin, Nourie, Sundeen, Nassikas & Pingree, and Dort S. Bigg, Manchester (Dort S. Bigg, Manchester, orally), for defendant.

DUNCAN, Justice.

The plaintiff's intestate, a registered nurse who was twenty-eight years of age, died in consequence of injuries suffered at Tyngsboro, Massachusetts at approximately 11:40 P.M. on April 14, 1963, when her automobile, operated by the defendant, collided with a utility pole at the side of the highway. She and the defendant had left Laconia late in the afternoon of the same day. Until shortly before the accident, the decedent had done the driving. A stop had been made at Bow, at which time both parties had some beer to drink. Thereafter they had sandwiches at a restaurant in Concord, and then proceeded toward Lowell, Massachusetts with the decedent at the wheel. At some place near the Massachusetts line, the defendant took the wheel at the decedent's request, and the decedent went to sleep. The accident occurred a few miles from where the defendant commenced to drive.

The Trial Court found 'that the sole cause of the accident was the fact that the defendant dozed off to sleep and did not awaken in time to avoid collision with the pole.' It further found: 'While the defendant had been drinking, the evidence does not convince me that he was unable properly to control the vehicle while awake or that he had difficulty in doing so before dozing off. Neither is it found that after he took the wheel he had any warning that he was going to fall asleep.' The Court granted the defendant's request as follows: 'After taking over the wheel, Carl DeLong had to advance warning that he was about to doze, but suddenly and unexpectedly dozed at the time of the occurrence of the accident.' After reasoning that dozing as a passenger 'does not mean that a person cannot keep awake when charged with the responsibility of driving,' the Trial Court was 'not convinced * * * that in taking over the wheel * * * under all the circumstances was anything different than the ordinary man of average prudence would have done and I therefore do not find the defendant was negligent in doing so.'

Under principles which receive general recognition an operator of a motor vehicle who permits himself to fall asleep while driving is guilty of ordinary negligence if he has continued to drive without taking reasonable precautions against sleeping after premonitory symptoms of drowsiness or fatigue. Annot. 28 A.L.R.2d 12, 44 et seq; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; Bernosky v. Greff, 350 Pa. 59, 38 A.2d 35; Carvalho v. Oliveria, 305 Mass. 304, 25 N.E.2d 764. Cf. Theisen v. Milwaukee Automobile Mut. Ins. Co., 18 Wis.2d 91, 118 N.W.2d 140, 119 N.W.2d 393.

In State v. Beauvais, 102 N.H. 276, 155 A.2d 190, under circumstances where 'the possibility that the defendant would fall asleep at the wheel was a foreseeable risk of which it could be found he knew or should have known,' the evidence was held to warrant but not to compel a finding of operation 'in a grossly careless or grossly negligent manner.' There, however, no evidence was presented of preliminary dozing or similar premonitory signs, but only of prior lack of sleep, coupled with physical activity and the consumption of liquor. See also, Savard v. Randall, 103 N.H. 234, 169 A.2d 276. In Carvalho v. Oliveria, 305 Mass. 304, 305-306, 25 N.E.2d 764, 765 the Court said: 'Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, at least it may be said that the danger of driving while heavy with drowsiness is so extreme and so...