Lovett v. Manchester St. Ry.

• Decision Date: 02 February 1932
• Citation: 159 A. 132
• Parties: LOVETT v. MANCHESTER ST. RY. (three cases). PERRY v. SAME.
• Court: New Hampshire Supreme Court

159 A. 132

LOVETT

v. MANCHESTER ST. RY. (three cases).

PERRY

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1932.

Exceptions from Superior Court, Hillsborough County; Matthews, Judge.

Actions by Ethel B. Lovett, by Francis J. Perry, by his mother and next friend, Ethel B. Lovett, and two actions by Leon L. Lovett against the Manchester Street Railway. Verdicts for plaintiffs in all cases. On defendant's exceptions.

Judgments on the verdicts.

Actions on the case, to recover for personal injuries and property damages resulting from a collision of the plaintiffs' automobile with the defendant's street railway pole. The cases were tried together by jury with verdicts in favor of the plaintiffs in all cases.

Transferred by Matthews, J., on the defendant's exceptions to the denial of its motions for nonsuits and directed verdicts, to the admission of evidence, and to the allowance of statements of counsel. The facts are stated in the opinion.

Hurley & Connor, of Manchester (A. J. Connor, of Manchester, orally), for plaintiffs.

Warren, Wilson, McLaughlin & Bingham, of Manchester (R. P. Bingham, of Manchester, orally), for defendant.

SNOW, J.

The defendant maintains and operates a double-track trolley line centrally located on Elm street in the city of Manchester. The street runs north and south, and is between eighty and ninety feet wide between curbs. The trolley wires were originally supported by a line of iron poles situated between the two tracks. These poles were located pursuant to a license granted the defendant by the board of mayor and aldermen on April 19, 1895, in accordance with P. S. c. 81, § 2, P. L. c. 97, § 2. In 1928 it was decided to substitute for the "so-called center construction" a curb or side line construction on a portion of the street. Accordingly, on April 3 of that year, the defendant was granted authority by the city pursuant to P. L. c. 97, §§ 2, 3, 7, to locate lines of poles at the curb on "each side of Elm street from Myrtle street [northerly] to North street." Prior to the day of the accident, the defendant acting under this authority had reconstructed the trolley line from Myrtle street northerly as far as Sagamore street, a distance of about eight blocks. As the poles were erected at the curbs the corresponding center pole was removed. The plaintiffs' car collided with the most southerly pole of the remaining central line. This pole was located at a point about forty feet north of the center of Sagamore street.

The city was engaged in resurfacing and ditching the easterly side of Elm street, and had excavated between the curb and the easterly rail of the defendant's easterly track from about the center line of Sagamore street southerly for two blocks, a distance of about five hundred feet. This excavation resulted in the diversion of north-bound vehicular traffic to the tracks of the defendant for that distance. The excavation had existed for a period of about three weeks prior to the accident. The city guarded it at night by wooden horses at the ends and by red and flare lights on the sides.

On August 23, 1929, the plaintiffs, en route from Lowell, Mass., to Meredith, were traveling northerly on Elm street. The car was an Essex "left hand drive." The plaintiff Leon was driving, his wife Ethel was riding beside him, and her son Francis occupied the rear seat. As he approached the excavation the driver turned to the left, and was proceeding "well over in the car tracks," "well toward the center of the street," at a speed of between fifteen and twenty miles per hour, when the car came in collision with the pole. The point of the contact on the car was a little to the left of the center of the radiator. The force of the impact was such as to demolish the front end of the car and produce serious injuries to the three occupants.

The accident occurred about 9:30 o'clock in the evening. The city maintained street lights every two blocks. There was a 1,000-watt arc light suspended over the street by an arm reaching from a pole situate at the southwest corner of Elm and Sagamore streets. The car was equipped with standard headlights which were in good condition and burning, and with a vacuum windshield wiper which was working. There was evidence that there had been a thunder shower and that it was still mining. The atmospheric condition is variously described as "dark," "rather dark," "very dark," "kind of murky, dark," "the air was thick like just before a fog." The pole was eight inches in diameter and painted dark green or black. Its presence was not indicated by any barricade, warning light or sign. Both the driver and his wife, Ethel, testified that they did not see the pole prior to the collision.

There is no merit in the plaintiffs' contention that, upon the defendant's acceptance of the license of April 3, 1928, the locations of the center line of poles which had been authorized in 1895 were thereby eoinstante revoked, and that therefore the pole in question was illegally in the street (Thompson v. Company, 77 N. H. 92, 93, 88 A. 216), and its presence there evidence of the defendant's negligence. No such an Impractical condition is imposed by the statute, and no intention to prescribe such a limitation is to be inferred from the terms of the license. It is true that the location of any given center line pole was impliedly revoked by the later grant of locations for the corresponding side poles; but such revocation became effective only when the substitution had been accomplished. There is no evidence that curb poles had been substituted for the pole in question. Neither the statute nor the license prescribed or limited the time within which the granted right was to be exercised. The pole was rightfully where it was at the time of the accident.

The issue, therefore, raised by the defendant's exception to the denial of its motion for a directed verdict, so far as it relates to its negligence, is whether there was evidence from which it could be found that the pole, under the conditions obtaining, presented a hazard requiring protective action known to the defendant or of which it was chargeable with knowledge.

Upon this issue the defendant relies upon the want of evidence that it had notice of "any dangerous condition in the * * * pole." The determination of this question requires an analysis, and separate consideration, of the factors which conspired to make its condition and situation dangerous. The hazard which the plaintiffs encountered was the result of a combination of circumstances. The removal of the poles to the south, in the course of the trolley line reconstruction, had opened the railway roadbed to vehicular travel and left this pole standing in the line thereof as a frontier pole unprotected by its former fellows. The excavation by the city had diverted the whole north-bound traffic to the center of the street and in approximate line with the pole. Weather conditions which tended to obscure the pole to an approaching driver completed the hazard. The question presented is whether or not it could be found on the evidence that the defendant either knew of these several conditions or was chargable with knowledge thereof.

The defendant was operating an important public utility over the city's main thoroughfare. Elm street not only accommodated congested local traffic, but carried the travel of one of the state's principal arteries. The defendant's cars passed either way every few minutes of the busy hours of the day. It cannot be seriously contended that the officers in control of the company's trackage were ignorant of an excavation five hundred feet in length along its rails which diverted the entire north-bound traffic to its roadbed for that distance, and which had existed in this condition for a period of three weeks in the height of August travel. Such an occupation of the defendant's roadbed concerned the duties of the motormen. They had to act with view to, and to deal with, the diverted traffic. They were charged with, and expected by the defendant to assume, all responsibilities growing out of the operation of their cars in the midst of such traffic. Saunders v. Railroad, 82 N. H. 476, 478,136 A. 264, 50 A. L. R. 367. It necessarily follows that the knowledge of the motormen, as respects the existence of the excavation and the consequent diversion of travel to the company's tracks, was that of the defendant.

It may be remarked in passing that for this reason the defendant takes nothing by its exceptions to the admission of evidence of the frequency with which the cars passed and of the consequent opportunities which the operators had to observe the city's obstruction to traffic.

Notice of the occupation of its roadbed by the diverted traffic charged the defendant with knowledge of the nature and extent of such occupation. Any examination would have disclosed that the excavation extended to within forty feet of the exposed pole; that the natural course of the diverted traffic was approximately, if not directly, in line therewith; and that a traveler who should follow the line of the detour along the center of the street would be compelled to swing to his right to avoid a collision with the pole. There was evidence that, "if you were not careful going up the easterly side, you might slip over the right side of the right hand car track." The. relation of the excavation to the pole was thus too intimate and patent to escape the notice of one who had any duty to protect the traveling public from the company's instrumentalities in the highway. The hazard of the pole to travelers by reason of the limited path of travel and the devious course necessary to avoid it was likewise obvious to any one required to give it attention. The defendant knew the diminutive size and want of distinguishing features of the pole. It was bound to anticipate the darkness incident to nighttime and possible obscuring weather conditions. The absence of...