Leavitt v. Bacon
| Decision Date | 01 June 1938 |
| Docket Number | No. 2927.,2927. |
| Citation | 200 A. 399 |
| Parties | LEAVITT v. BACON (two cases). WATKINS v. BACON. |
| Court | New Hampshire Supreme Court |
[Copyrighted material omitted.]
Transferred from Superior Court, Rockingham County; Young, Judge.
Actions on the case for negligence in the operation of an automobile by Lucy S. Leavitt and by Joseph E. Leavitt and by Thomas Watkins, guardian of William J. Young, Jr., against Louis A. Bacon. The case was transferred on Lucy S. Leavitt's exception to the granting of the defendant's motion for judgment on a verdict for the defendant, and on the defendant's exceptions to the denial of his motions to set aside verdicts for Joseph E. Leavitt and for Thomas Watkins, guardian.
Judgments on the verdicts.
Actions on the case for negligence in the operation of a motor vehicle. Trial by jury with a view. In the action of Lucy S. Leavitt there was a verdict for the defendant. The jury returned a verdict for Joseph E. Leavitt in the sum of $1,500, and one for Thomas Watkins, Guardian, in the sum of $500. The defendant excepted to the denial of motions seasonably made by him for nonsuits and directed verdicts. He also excepted to the admission of certain evidence, to the allowance of portions of the argument of counsel for the plaintiffs, and he claims to have an exception to the Court's charge. After verdict the defendant moved for judgment on the verdict in the action of Lucy S. Leavitt. The motion was granted, subject to her exception. The defendant also moved to set aside the verdict for Joseph E. Leavitt on the ground that it was inconsistent with the verdict in Lucy S. Leavitt's case, because it was contrary to the evidence and the weight of the evidence, because the damages were excessive, and because the jury was moved by passion, prejudice and bias, and unwittingly fell into a plain mistake. The motion was denied, and the defendant excepted. The defendant also moved to set aside the verdict for Watkins, Guardian, because it was contrary to law, because it was against the evidence, because the damages were excessive, and because the jury was moved by passion, prejudice and bias, and unwittingly fell into a plain mistake. This motion also was denied, subject to the defendant's exception.
Transferred by Young, J. The material facts will be found in the opinion.
William H. Sleeper, of Exeter (George H. Grinnell, of Derry, orally), for plaintiffs. Hughes & Burns and Charles F. Hartnett, 2nd, all of Dover (Geo. T. Hughes, of Dover, orally), for defendant.
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These cases arise out of the collision of two motor vehicles at about ten o'clock in the morning of June 25, 1932, in the intersection of the Lafayette Road and Atlantic Avenue, two public highways in North Hampton. The day was clear, and the road was dry. The two cars involved were Joseph E. Leavitt's, driven by his wife, Lucy S. Leavitt, and the defendant's, driven by himself. William J. Young, Jr., Mrs. Leavitt's grandson, fifteen years of age, was a passenger in the Leavitt car and was sitting at her right. Mr. Leavitt was not present. Mrs. Leavitt sued for her personal injuries. Joseph E. Leavitt sought to recover damages to his car, expenses entailed by his wife's injuries, and damages for the loss of consortium. Watkins, Guardian, claimed damages for personal injuries suffered by Young. All of the damages were alleged to have been caused by the defendant's negligence.
The evidence exhibited the usual conflict. Taking it most favorably for the plaintiffs, the record discloses that the following facts might have been found:
Mrs. Leavitt was driving in an easterly direction on Atlantic Avenue, the defendant northerly on the Lafayette Road. Though there was insufficient evidence that the latter was legally a through way, there were stop-signs planted in Atlantic Avenue on both sides of the Lafayette Road. Mrs. Leavitt, approaching Lafayette Road, came to a stop at the sign on the westerly side, distant about twenty-seven feet from the surfacing of that road, which was twenty feet in width.
After coming to a stop, which she held for an appreciable time, she looked north and south and saw nothing coming in either direction. Her view to the south, whence the defendant was coming, was limited to a distance of about two hundred and thirty feet. Having looked while at the stop-sign and seen nothing, she started up and proceeded at a speed of five miles an hour across the Lafayette Road. From the moment of starting to the moment of collision, she looked neither right nor left, but straight ahead.
When the Leavitt car was in the middle of the crossing, half on the northbound strip and half on the southbound, the defendant's car was at least one hundred feet away. The collision happened when the Leavitt car's hind wheels were within three feet of the easterly margin of the surface of the Lafayette Road. The defendant's car collided with the rear wheel of the Leavitt car, and the radiator of the former was damaged. The defendant's evidence was that he was unable to turn into the southbound lane because of a car approaching from the north, but even if the evidence had not been conflicting upon this point, the jury were not bound to believe the defendant's claim either that he could not with safety turn sharply to the left, or that he actually turned slightly to the left.
The force of the impact swung the rear end of the Leavitt car on a curve about twenty-five feet long, and the car came to rest nearly, if not wholly, off the surface of the Lafayette Road facing southwest, the direction of the car having changed considerably more than ninety degrees. The defendant's car was brought to a stop on the westerly side of the Lafayette Road, somewhere from fifty to a hundred feet from the point of collision.
The defendant admitted that the Leavitt car was always fully within his view from the moment it was standing, before starting to cross the intersection, to the moment when his car hit it. He could be found negligent because he took no saving action during the elapsed time.
It is common knowledge that for every action there is a compensating reaction; that the inertia of the Leavitt car had to be overcome by a force sufficient to displace it to the extent indicated. There remained in the defendant's car sufficient momentive force to carry it fifty to a hundred feet further, provided the testimony of the defendant were believed that his own motor stalled at the time of the collision. There was the further fact that at five miles per hour the Leavitt car progressed only a little over ten feet, while the defendant's car was proceeding one hundred feet or more. The jury would have been justified in finding that he was driving considerably faster than thirty-five miles an hour (L. 1927, c. 76, § 2), or that he was not reasonably watchful, or that he could have turned left and have avoided the accident. They could have concluded that his conduct in one or more of these respects was negligent and causal.
The jury would equally have been warranted in finding that Mrs. Leavitt's negligence had some share in causing the accident. From the stop-sign to the point where she entered the traveled part of the Lafayette Road, she looked neither left nor right. Had she looked as she entered, she would for all practical purposes have had an unlimited view of traffic approaching from the south. She did not look but drove twenty-five feet or more further with her eyes straight ahead. The conclusion would be warranted that her failure to look was a contributing cause of the collision. Niemi v. Boston Railroad, 87 N.H. 1, 3, 173 A. 361, 175 A. 245. There can be no doubt that the verdict in her case establishes the fact of her negligence, and the verdicts in the other cases must establish the fact of the defendant's negligence. There seems to be every reason for sustaining the verdict in her case and no reason why it should be set aside.
Next we may conveniently discuss the suit brought by the guardian. Here the defendant could not be entitled to a nonsuit or a directed verdict. There was sufficient evidence of his own causal negligence, and his motions could not be granted unless (1) the negligence of Mrs. Leavitt was to be imputed to her grandson, or (2) the boy's own negligence appeared conclusively to have contributed to cause his injuries. The former is not urged, but the latter is.
Apparently the question of his care for himself was not submitted to the jury, but the defendant can raise no question here because of that fact. He requested no suitable instructions, and none were given. The Court merely told the jury that Mrs. Leavitt's negligence was not to be imputed to him. After the completion of the instructions there was a colloquy at the bench between the Court and counsel. Defendant's counsel, having just been reminded by the Court that he should take exception to such portions of the charge as he thought erroneous, suggested the negligence of the boy if he could see and did not. Then followed this:
Defendant's counsel did not deny that this was the first time the question of the boy's negligence had been raised, but did discuss the possibility of contributory negligence. Plaintiff's counsel inquired whether the Court had charged the jury that the boy was not negligent. Defendant's counsel answered "No", and there the matter was dropped, without any request for further charge or any exception asked for by the defendant. Counsel for the defendant appears to have acquiesced, for all his expressed doubts, in the situation as it was known to the jury. The law as the jury heard it thus became the law of the trial and the defendant has no exception raising any question of error, even on his motion to set aside the verdict. Williamson v. Derry Company, N.H., 196 A. 265.
Even if this were not so, the evidence...
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