London v. Perreault, 7827

• Decision Date: 31 May 1978
• Docket Number: No. 7827,7827
• Citation: 118 N.H. 392,387 A.2d 342
• Parties: M. Roy LONDON, Jr., Executor of the Estate of M. Roy London v. Lionel A. PERREAULT et al.
• Court: New Hampshire Supreme Court

Page 342

387 A.2d 342

118 N.H. 392

M. Roy LONDON, Jr., Executor of the Estate of M. Roy London v. Lionel A. PERREAULT et al.

No. 7827.

Supreme Court of New Hampshire.

May 31, 1978.

McSwiney, Jones & Semple, Concord (Robert E. Bowers, Jr., Concord, orally), for plaintiff.

Sheehan, Phinney, Bass & Green, P. A., Manchester (James Q. Shirley, Manchester, orally), for defendants.

BOIS, Justice.

This is an action on the case to recover damages arising out of an automobile accident that occurred on January 10, 1974. Trial by jury resulted in a verdict for the defendants. During the course of trial plaintiff seasonably excepted to the denial of his motion for a directed verdict, to certain portions of the court's charge, and to the failure of the court to charge as requested. After verdict, the plaintiff seasonably excepted to the denial of his motion to set aside the verdict. All questions of law raised by these exceptions were reserved and transferred by Loughlin, J. For the following reasons we affirm.

The plaintiff's decedent, M. Roy London, was driving westerly on Route 11 headed for his home in New London, New Hampshire, having just picked up Mr. Ernest Reed. Defendant Perreault, concededly in the course of his employment, was driving a Brunswick Foods light commercial truck on his delivery route and was following Mr. London's vehicle. The accident occurred at approximately 9:30 a. m. when an unidentified pickup truck travelling ahead of Mr. London's vehicle made an unsignalled left turn. It was snowing at the time, and the road had become hazardous due to an accumulation of ice and snow. Mr. London's vehicle suddenly went around the pickup truck on the right and hit a snow bank on the right hand side of the road, causing his vehicle to slow down. There was conflicting testimony whether Mr. London returned his vehicle to the travel lane under control, or whether his vehicle was "fishtailing" after coming out of the snowbank. As Mr. London's vehicle reentered the lane of traffic, it was struck from behind by Mr. Perreault.

The force of the collision caused Mr. London's vehicle to cross the highway immediately into the path of a tractor trailer truck being driven easterly on Route 11. The resulting injuries caused Mr. London's death ten days later.

The first issue presented is whether the trial court erred in failing to grant the plaintiff's motion for a directed verdict. Such motions may be granted only when the evidence and all reasonable inferences therefrom, construed most favorably to the party opposing the motion, would not enable a jury to find for that party. Amabello v. Colonial Motors, 117 N.H. ---, 374 A.2d 1182, 1185 (1977); Muzzy v. Rockingham County Trust Co., 113 N.H. 520, 521, 309 A.2d 893, 894 (1973). The evidence in this case was conflicting and did not satisfy that standard. One witness testified that defendant's speed was 30-35 miles per hour, whereas defendant estimated his speed at 25-30 miles per hour. The other vehicles on Route 11 were traveling at approximately the same speed as defendant's vehicle. The posted speed limit was 55 m. p. h. Under these circumstances the question of the reasonableness of the defendant's speed under the adverse weather conditions then prevailing was properly left to the jury. See George v. Smith, 105 N.H. 100, 101, 193 A.2d 16, 17-18 (1963); Owen v. Dubois, 95 N.H. 444, 446, 66 A.2d 80, 81 (1949); Bennett v. Bennett, 92 N.H. 379, 388, 31 A.2d 374, 381 (1943). Contrary to the plaintiff's contention, the defendant's testimony that he estimated his distance from Mr. London's vehicle to be only three car lengths did not require a finding of negligence as a matter of law. "The conclusion . . . is not compelled as a matter of law because . . . based upon a lay witness' estimate of distance. In the first place such testimony is notoriously inaccurate. In the second place it does not bind the (defendant) because it relates to an objective matter about which (he) might well be mistaken." Keck v. Hinkley, 90 N.H. 181, 185, 6 A.2d 165, 167 (1939). In addition, the defendant testified at least once to his inability to estimate the distance, and there was evidence presented that the defendant had estimated his distance at 150 feet at the time of the accident. Under these circumstances the defendant's distance from Mr. London's vehicle and the reasonableness of that distance were questions for the jury; the trial court did not err in refusing to rule that Perreault was negligent as a matter of law.

Plaintiff's motion for a directed verdict was properly denied in this case for another reason. In order to warrant granting the motion, the evidence must be such that defendants' liability was the only conclusion which could reasonably be drawn from the evidence.

LePage v. St. Johnsbury Trucking Co., Inc., 97 N.H. 46, 49, 80 A.2d 148, 151 (1951). Here the record reveals evidence sufficient to entitle the defendant to a jury's consideration of Mr. London's contributory negligence. Mr. Reed, Mr. London's passenger, testified that Mr. London suddenly applied his brakes and skidded into the guardrails, hitting them in succession, apparently causing the vehicle to slow down unexpectedly. The defendant testified that as the pickup truck executed a left turn, Mr. London attempted to pass it on the right, but he hit a snow bank which slowed him down and caused him to "fishtail."

The cases of Fine v. Parella, 92 N.H. 81, 83, 25 A.2d 121, 122 (1942) and Himmel v. Finkelstein, 90 N.H. 78, 79, 4 A.2d 657, 658 (1939), relied on by the plaintiff, do not support the proposition that a motorist is required under all circumstances to anticipate and provide against the negligence of other motorists, but merely state that "a motorist, under certain conditions, may be required 'to anticipate and provide against that occasional negligence' which is one of the expectable incidents of highway traffic." Whether conditions were such as to require the defendant to anticipate another operator's negligence is ordinarily a question of fact for the jury. Fine v. Parella, 92 N.H. at 83, 25 A.2d at 122; Himmel v. Finkelstein, 90 N.H. at 79-80, 4 A.2d at 658. That defendant was solely liable was not the only conclusion that could...