Laflamme v. Lewis

• Decision Date: 01 June 1937
• Citation: 192 A. 851
• Parties: LAFLAMME v. LEWIS. BORNEMAN v. SAME.
• Court: New Hampshire Supreme Court

192 A. 851

LAFLAMME

v. LEWIS.

BORNEMAN

v. SAME.

Supreme Court of New Hampshire. Merrimack.

June 1, 1937.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Action on the case for negligence by Henry Laflamme, administrator of Albert J. Laflamme, deceased, and by Azalie Borneman, against Carroll G. Lewis. Verdicts for the defendant, and the cause was transferred upon the plaintiffs' exceptions to the denial of requests for instructions and to the charge, and on the defendant's exceptions to the denial of his motions for nonsuit and directed verdicts.

New trial.

Two actions on the case for negligence, alleged to have resulted in the death of the plaintiff's intestate in the first case and in personal injuries to the plaintiff in the second case. Trial by jury, with verdicts for the defendant. Transferred by Sawyer, C. J., upon the plaintiffs' exceptions to the denial of their requests for instructions, and to the charge, and to the defendant's exceptions to the denial of his motions for nonsuits and directed verdicts.

There was evidence from which the following facts might be found: The accident happened upon the Daniel Webster highway in Pembroke, on August 14, 1934, at about 1:53 a. m. The plaintiff Borneman and the decedent Albert J. Laflamme were at that time passengers on the rear seat of an automobile of the sedan type, operated by one Lobban, which collided with the rear of the defendant's truck which was parked on the easterly side of the highway, obstructing the lane of travel in which the Lobban automobile was proceeding. There was a heavy fog at irregular intervals along the road and the visibility at the scene of the accident was poor. The defendant's truck, which had been traveling north, came to a stop shortly before the accident, when it met a southbound truck of the defendant at a place known as Hobbs Corner. Both vehicles were stopped in order to exchange drivers. The northbound truck was stopped on the east side of the highway with its right front wheel a foot and a half off the cement. Both rear wheels were on the cement, and the rear of the truck occupied seven or eight feet of the easterly lane of the highway. Beyond the gravel shoulder there was a shallow ditch and a bank against which the forward wheels of the truck were driven by the force of the collision. The automobile driven by Lobban approached the scene of the accident at a speed of from 30 to 35 miles per hour, but at the time of the collision its speed had been reduced to 20 to 25 miles per hour on account of the fog. Under the fog conditions prevailing at the time, the visibility afforded by the headlights of the Lobban automobile was limited to from 50 to 75 feet. The lights of the southbound truck also interfered with Lobban's vision. As a result, he did not see the northbound truck until he was within 15 feet of it. He was then unable to avoid a collision, and the right front of the automobile came in contact with the left rear corner of the truck.

The exceptions considered and other facts relating thereto are stated in the opinion.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiffs. Demond, Woodworth, Sulloway, Piper & Jones, of Concord (Jonathan Piper, of Concord, orally), for defendant.

BRANCH, Justice.

Two closely related questions as to the meaning and effect of the Motor Vehicle Law (Pub.Laws, c. 103, as amended by Laws 1927, c. 76) are presented by this record, and final disposition of the case will be facilitated if they are given antecedent consideration. We, accordingly, take up these questions at the outset. Their purport may be summarized as follows: How far do the speed and parking regulations of the statute prescribe the conduct of the operator of a motor vehicle under conditions of poor visibility caused by fog?

With reference to the conduct of the driver of the sedan, the court charged the jury as follows: "Now he was in law bound to keep a reasonable look-out ahead, but if by reason of the fog being more or less dense his vision was obstructed, then he was bound to drive at a speed that was reasonably safe under the conditions that then existed. If his view was obstructed so that he could not see the truck until within fifteen feet of it or thereabouts, our statute limits him and his right to drive to fifteen miles an hour; a greater speed is negligence." To this instruction the plaintiffs duly excepted. The provisions of the statute upon which this charge must have been based are as follows:

"It shall be prima facie lawful for the driver of a vehicle to drive the same at a speed not exceeding the following, but in any case when such speed would be unsafe it shall not be lawful: * * *

"III. Fifteen miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a distance of one hundred feet along such highway in the direction in which he is proceeding. * * *

"It shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations." Laws 1927, c. 76, § 2 (amending Pub.Laws, c. 103, § 18).

The plaintiffs now argue that this provision was inapplicable to the situation disclosed by the evidence for two reasons: (1) Because "the statute is intended to apply to a situation where the driver's view is interrupted by physical obstruction and not where it is impaired by poor visibility," and (2) because "the automobile in which the plaintiffs were traveling was not 'traversing or going around' a curve or 'traversing a grade.'"

We think that the first of these arguments is untenable. The precise issue thus raised was considered by the Supreme Court of Massachusetts in the case of Woodman v. Powers, 242 Mass. 219, 136 N.E. 352, 353, which involved the interpretation of a statute identical in most of its terms with P.L. c. 103, § 18. The conclusion of the court was there stated as follows: "Manifestly the statute was designed to protect the public from injury from motor vehicles. The evident intention of the Legislature was to require such vehicles to proceed slowly where the view of the operator is obstructed. The obstruction to view ordinarily would be the same whether it is caused by trees, buildings, billboards or other permanent objects, or is due to darkness, a blinding snowstorm or thick fog. It would be too narrow a construction of the statute to hold that it applies to obstructions of a permanent character only." With the reasoning and conclusion of the Massachusetts court we are content. That fog and smoke are regarded as obstructions within the meaning of similar statutes is indicated by the following decisions: Sullivan v. Lutz, 181 Wis. 61, 194 N.W. 25; Bong v. Webster, 217 Ky. 781, 290 S.W. 662; Benjamin v. Noonan, 207 Cal. 279, 277 P. 1045. For numerous decisions holding, in the absence of statute, that fog constitutes an "obstruction" of vision, see Third and Fourth Decennial Digests, title, Automobiles, 168 (8) (9).

The second position of the plaintiffs is well taken. There is no suggestion in the record that the accident happened upon a curve or grade within the meaning of the act. An engineer's plan of the location, which was in evidence, indicates a straight road for several hundred feet in both directions from the point of collision. If it was not entirely level, no appreciable grade was mentioned in the testimony or in the defendant's brief. Under these circumstances, the statutory provisions above quoted were clearly inapplicable and the instruction with reference thereto was erroneous.

The statutory provisions in regard to parking are as follows: "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; provided, in no event shall any person park or leave standing any vehicle, whether attended or tin attended, upon any highway unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction upon such highway." Laws 1927, c. 76, § 3 (adding section 16-a to chapter 103, Pub.Laws).

With reference to this statute the plaintiffs requested an instruction as follows: "6. There is no statutory or common law rule which precludes the operator of defendant's truck from parking the truck to the left of the main travelled portion of the highway."

The court charged the jury as follows:

"The statutory duty is not absolute. It applies when and only when it is practicable to park or leave such vehicle standing off a paved or improved or main traveled portion of a highway. You are the sole judges of that. You had a view of the location of the highway at or near where the truck stopped, which may be treated as evidence. You have the evidence of the driver as to why he stopped at the point he did. Taking all that and any other evidence bearing on the point, you are to decide whether the east side of the highway in that vicinity was such that it was practicable to stop at a point, where, considering the dimensions of the truck, it would have been entirely off the main highway. * * * When the Almighty sends a fog, and that fog is so dense that with accompanying darkness it becomes impossible to see an automobile or truck that is parked two hundred feet away, with reasonable lights and reflectors, such as were required by the statute, then the statutory duty cannot be complied with. * * * At any rate, I am going to charge you that inasmuch as the law does not contemplate the impossible, you will pay no attention to that feature of this statute, provided you find the fog was so dense that the truck could not be seen at a distance of two hundred feet if equipped with lights and reflectors such as are required by the statute...