Lavigne v. Nelson, 3222.
| Decision Date | 04 March 1941 |
| Docket Number | No. 3222.,3222. |
| Citation | 18 A.2d 832 |
| Parties | LAVIGNE v. NELSON, and eight other cases. |
| Court | New Hampshire Supreme Court |
[Copyrighted material omitted.]
Transferred from Superior Court, Strafford County; Johnston, Judge.
Action for damages to a truck by Romeo J. Lavigne against Sadie Nelson, and actions by Sadie Nelson, Nellie Malone, Esther Thornton, Robert Nelson, by his next friend, Paul Thornton, by his next friend, Sarah A. Nelson, as administratrix, Albert S. Bettencourt, administrator, Thomas J. Malone, administrator, and Paul Thornton, by his next friend, against Romeo J. Lavigne for injuries and death resulting from a collision between a truck and an automobile. Transferred without ruling.
In first-named action new trial limited to the issue of damages granted, and in the other actions judgment for the defendant.
Actions, to recover for the death of three persons, for physical injuries sustained by five others, and for property damage, all caused by a collision between a motor truck owned by Romeo J. Lavigne and operated by Ernest J. Enos and a Ford sedan owned by Sadie Nelson and operated by the decedent Anna Bettencourt. In the first-named action Romeo J. Lavigne seeks to recover for the damage done to his truck. The plaintiffs in the other actions are referred to generally in the opinion as the plaintiffs.
The accident occurred on Route 16 in Milton on the night of August 30, 1937. The truck was proceeding north and the automobile south. The cases were tried together by jury, and the trial resulted in a disagreement. Transferred by Johnston, J., on exceptions to the denial of Lavigne's motions for nonsuits and directed verdicts in the actions against him and for a directed verdict in his action against Sadie Nelson. The material facts are stated in the opinion.
Robert E. Earley, of Nashua, and John W. Blakeney, Jr., of Boston, Mass, for Sadie Nelson and plaintiffs, in the actions against Lavigne.
F. Maurice LaForce, of Berlin, and Hughes & Burns, of Dover (Stanley M. Burns, of Dover, orally), for Romeo J. Lavigne.
At the time of the accident there were eight persons riding in the Nelson car. They had left Bethlehem at about seven o'clock that evening. Their destination was Dorchester, Massachusetts. Some of their baggage was fastened to the outside of the car, a bag between each fender and the hood and a third bag tied to the back of the car. Mrs. Nelson testified that their speed at no time exceeded thirty-five miles an hour.
The truck with which the car collided was known as Lavigne's Red Wing Express. The body of this truck was eighty-four and three-quarters inches in width, and the length of the truck from the front bumper to the rear end was about twentytwo and a half feet. Enos was driving the truck from Boston to Berlin. It was loaded with tile pipe and other freight.
The occupants of the sedan had turned on the radio and were listening to the broadcaster's account of a prize fight then in progress. All those who survived the accident testified that the sedan was on the right-hand side of the road when the collision occurred. None of them saw the truck until a moment before the collision. Mrs. Bettencourt, who was driving the car, was killed in the accident.
Enos left Boston early in the afternoon. He had difficulty with the ignition and carburetor of the truck and was delayed at several points along the route. The accident occurred at about eleven o'clock.
The left side of the sedan, which collided with the left front and side of the truck, was completely demolished, and the left front wheel of the car was found embedded in the pavement. There were marks indicating that dual tires such as those on the rear wheels of the truck had passed over it. Photographs taken at the request of the County Solicitor the morning after the accident show the complete circle of the brake drum imprinted on the surface of the highway with what appears to be dual-tire marks on the north and south side of the circle.
Enos testified that it was a foggy night and that he first saw the lights of the sedan when they were from two to three hundred feet distant; that he was on the east or right-hand side of the road, and that as the lights drew nearer he observed that the approaching car was on the same side of the road; that when it became evident that the driver of the car was not going to turn to the west side, he sounded his horn and pulled the truck farther over to the right so that its right wheels were entirely off the traveled surface, and that the collision followed.
A state motor-vehicle inspector who visited the scene of the accident that night very soon after the collision testified that he found the imprint "of a set of dual tires running along" in the soft dirt on the east side of the road and extending northerly, parallel with the highway, beyond the point where the wheel of the sedan had been pressed into the pavement. He also testified that he removed this wheel, over which dual tires had apparently run, and that the brake drum left a circular indentation in the tarvia. The civil engineer who made the plan used at the trial testified that the width of the highway was about twenty-one feet and that the distance from the easterly edge of the circle to the easterly side of the road was only five and a half feet. If the accident occurred at this point, it is evident that the right-hand wheels of the truck were off the traveled surface of the road.
The car ran some distance beyond the point of collision, turned completely around, and came to a stop on the west side of the road about eighty feet south of the place where the wheel had been crushed. Its apparent course was indicated by tire marks on the tarvia. These marks are shown very distinctly in the photographs. They are of varying width and are referred to in the evidence as scuff marks. They begin just north of the disk-like indentation and extend southward in wide, sweeping semicircles first toward the west, then toward the east, and then back to the west again. They point unmistakably to the fact that the collision must have taken place close to the spot where the wheel was found.
This conclusion is strengthened by the appearance of long, irregular gouges or scorings on the surface of the road extending south from a point immediately west of the circle. There was opinion evidence to the effect that these marks were caused by the left front spindle from which the wheel of the sedan had been severed. The motor-vehicle inspector testified that he found bags and clothing strewn all along the road from the embedded wheel to a point south of the wrecked car, and that he also found close to the wheel a...
To continue reading
Request your trial
-
Goodale v. Morrison
...charge the plaintiffs had excepted to the failure of the judge to give their ninth request, which included a citation of Lavigne v. Nelson, 91 N.H. 304, 18 A.2d 832. The defendant contends that this request was not embraced within the exception, and that it was a violation of the fragment d......
-
Gray v. Citizens Casualty Company of New York
...Heard, La.App.1936, 168 So. 519; Daniel v. State Farm Mutual Insurance Company, 1939, 233 Mo.App. 1081, 130 S.W.2d 244; Lavigne v. Nelson, 1941, 91 N.H. 304, 18 A.2d 832; Trans-Continental Mutual Insurance Co. v. Harrison, 1955, 262 Ala. 373, 78 So. 2d 917, 51 A.L.R.2d 917, cf. Morrow v. As......
-
Lee v. Zaske
...When evidence is conclusive, as here, it is no longer a jury question. Other states have so regarded like situations. In Lavigne v. Nelson, 91 N.H. 304, 18 A.2d 832, a motor vehicle collision case, the jury disagreed, and, under the New Hampshire practice, the case went to the supreme court......
-
Couture v. Lewis
...opportunity to avoid the accident * * *.' Ramsdell v. John B. Varick Company, 86 N.H. 457, 462, 170 A. 12, 15. See also, Lavigne v. Nelson, 91 N.H. 304, 309, 18 A.2d 832. The burden was on the plaintiff to prove such a clear opportunity was actually given to the defendant. Hamlin v. Roundy,......