Kelsea v. Town of Stratford

• Decision Date: 07 June 1921
• Citation: 118 A. 9
• Parties: KELSEA v. TOWN OF STRATFORD.
• Court: New Hampshire Supreme Court

118 A. 9

KELSEA

v. TOWN OF STRATFORD.

Supreme Court of New Hampshire.

June 7, 1921.

Transferred from Superior Court, Coos County; Kivel, Judge.

Action by Burleigh H. Kelsea, administrator, against the Town of Stratford, for causing death of plaintiff's intestate. Verdict for plaintiff, and defendants except, and transfer case. Exceptions overruled.

See, also, 79 N. H. 273, 108 Atl. 298.

Case, for causing the death of the plaintiff's intestate. Trial by jury and verdict for the plaintiff. The intestate left North Stratford in an automobile on the night of December 28, 1918, to visit a patient. The road was fairly good to the Jonah place, some 400 feet north of where the accident happened. From there on, the middle of the road was rough and icy, but the right or westerly side of the road was free from ice and comparatively smooth. There was, however, a 25-foot embankment on that side of the road with nothing to prevent a traveler driving off the bank or to notify him of its existence, except a wire fence along the property line. This line followed the top of the bank except for a short distance at the place where the accident happened. At that point the fence was 2 feet west of and 1 foot lielow the top of the bank. The intestate drove in the middle of the road until he reached the Jonah place. He then turned his car first to the right side of the road, then to the left side, and then back to the right side, and drove parallel with and about 2 feet from the fence until he came to the place where the fence was 2 feet from the fop of the bank; he then attempted to turn his car back into the road, and that caused his rear wheels to skid and the car rolled down the bank into the meadow. Transferred on the defendants' exceptions to the denial of their motion for a directed verdict, to evidence and to remarks of plaintiff's counsel. Other facts and evidence relevant to the exceptions appear in the opinion.

Drew, Shurtleff, Morris & Oakes, of Lancaster, for plaintiff.

Horace J. Holdcn, of Colebrook, Sullivan & Daley and Ira W. Thayer, all of Berlin, for defendants.

YOUNG, J. It can be found that the intestate was traveling on a dangerous embankment defectively railed at the time he was killed. This is true whether the office of a railing is, as the plaintiff contends, to prevent travelers driving over an embankment, or, as the defendants contend, to notify them of the embankment, for the railing, if we call the fence a railing, was almost ready to fall down and was not built on the top, hut 2 feet from and 1 foot below the top of the bank. In other words, it can be found either that the railing was defective, or that it was so placed that it was calculated to deceive rather than to notify travelers as to where it was safe for them to drive, for instead of its being safe to drive close to the railing, as is usually the case, it was unsafe to drive within 2 feet of it.

The defendants concede that the burden was on them to prove the intestate was guilty of contributory negligence, but say they have sustained that burden in other words, they contend that the conclusion the accident would not have happened if the intestate had used ordinary care to prevent it is the only one of which the evidence is fairly capable. In support of this contention they say, first, that it was negligence for the intestate with his knowledge of the situation and its dangers to leave the middle of the road while driving along this embankment. Although it is probably true that he was in a general way familiar with the road, it does not appear that he knew the fence did not follow the top of the bank; consequently it cannot be said that the ordinary man might not have done what he did—that is, might not have turned from the rough and icy part of the road to where it was smooth and free from ice, and driven, as he supposed, some 2 feet from the edge of the bank. The defendants also say it conclusively appears that the intestate was driving faster than 25 miles an hour when the accident happened. The evidence which tends to this conclusion is that he was driving at a "pretty good clip" when he passed the Jonah place, and that he was accustomed to drive from 25 to 35 miles an hour. While this evidence would sustain a finding that he was driving more than 25 miles an hour when he was killed, the position of the ear and its condition after the accident, together with the condition of the fence, tend to the...