Labor v. Pub. Serv. Co. of N.H.

• Decision Date: 01 December 1942
• Citation: Labor v. Pub. Serv. Co. of N.H., 92 N.H. 256, 29 A.2d 459 (N.H. 1942)
• Parties: LABOR v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.
• Court: New Hampshire Supreme Court

29 A.2d 459

LABOR

v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

Supreme Court of New Hampshire. Hillsborough.

Dec. 1, 1942.

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

Action on the case by Grace E. Labor, administratrix, against the Public Service Company of New Hampshire for death of plaintiff's intestate resulting from an automobile accident. Trial by jury resulting in disagreement. Defendant moved for nonsuit and for directed verdict and motions were denied subject to exceptions. Cause transferred to Supreme Court.

Judgment for defendant.

Case, to recover for the death of the plaintiff's intestate, Earton A. Labor, which occurred on a public highway in Deering on the evening of January 27, 1938. The plaintiff alleges that her intestate while operating his automobile ran off the traveled part of the highway and struck an electric light pole which the defendant negligently and unlawfully maintained. Trial by jury, resulting in a disagreement. The defendant moved for a nonsuit and for a directed verdict. These motions were denied subject to exception. Transferred by Lorimer, J. The material facts are stated in the opinion.

Murchie & Murchie, of Concord, and Howard B. Lane, of Keene (Alexander Murchie, of Concord, orally), for plaintiff.

Demond, Sulloway, Piper & Jones, of Concord, and Warren, Wilson, McLaughlin & Wiggin, of Manchester (Jonathan Piper, of Concord, orally), for defendant.

MARBLE, Justice.

The accident happened at a curve on the road leading from Deering to Hillsborough near the junction of that road with the road leading to Francestown. The plaintiff's intestate was proceeding in a northeasterly direction toward Hillsborough. He was riding alone and there were no eyewitnesses to the accident. The pole in question was situated at a point about four feet north of the northerly line of the traveled portion of the highway and close to a stonewall which ran substantially parallel with the road.

The defendant's evidence tended to prove that the car, driven at a high rate of speed, skidded at the curve and ran into the stonewall at a point ten feet or more west of the pole, which it did not touch. The automobile was found tipped over on its side lying crosswise of the road three or four feet distant from the pole and facing westward. The front end was substantially intact, but the left side near the driver's seat was badly damaged. The photographs of the car taken after the accident indicate a very severe impact at that point. The plaintiff contends that this damage and the death of her intestate were occasioned by contact with the pole.

It is the general rule that "a negligent defendant cannot be held liable for damage which would have resulted without his fault" (Peaslee, "Multiple Causation and Damage," 47 Harv.Law Rev. 1127, 1129), and if the plaintiff's contention were true a problem similar to that discussed in the case of Dillon v. Twin State Gas & Electric Co., 85 N.H. 449, 456, 457, 163 A. 111, would be presented; for even if no pole had been erected there at all, the decedent could not have escaped a disastrous crash against the stonewall.

The principal evidence in support of the plaintiff's contention comes from the decedent's father, who visited the scene of the accident on the following morning. He describes the skid marks as follows: "It appeared he had cramped the wheel and the wheel was kind of going sideways * * * it [the car] rubbed on both sides—both sides of the rut, see? * * * From there it looked as though it had come * * * in contact with the pole, right up against the pole, the spot. * * * From the rut it was right to the pole. From the pole * * * an almost right angle turn." He noticed that rocks had been knocked off the wall. "It looked," he said, "like a few might have been knocked out for a path. I wouldn't say it was a path."

The pole was not broken, and the only prominent marks, save two, which appear on it, as disclosed by various photographs, were obviously made by a lineman's spikes. There was testimony to the effect that the two marks above referred to were made by a canthook and binding chain when the pole was hauled there for installation.

A police officer who investigated the accident was asked if he...