Macdonald v. Appleyard

• Decision Date: 03 June 1947
• Citation: Macdonald v. Appleyard, 53 A.2d 434 (N.H. 1947)
• Parties: MacDONALD et al. v. APPLEYARD et al.
• Court: New Hampshire Supreme Court

53 A.2d 434

MacDONALD et al.

v.APPLEYARD et al.

Supreme Court of New Hampshire.

June 3, 1947.

Transferred from Superior Court, Rockingham County; Wheeler, Judge.

Case by James MacDonald and one O'Neil against John W. Appleyard and one Gendron to recover for personal injuries suffered by plaintiffs and for property damage sustained by James MacDonald when his automobile collided with a tractor trailer unit owned by John W. Appleyard and operated by Gendron.The defendants excepted to various rulings by the court, and the case is transferred.

New trial.

Case, to recover for personal injuries suffered by the plaintiffs, and property damage sustained by the plaintiff MacDonald when his automobile, in which the plaintiff O'Neil was a passenger, was in collision with a tractor-trailer unit owned by the defendant Appleyard and operated by his employee the defendant Gendron, at Salem, New Hampshire, on September 2, 1943.Trial by jury with a view.Verdicts for the plaintiffs.The defendants excepted to the denial of their motions for nonsuits and directed verdicts, and to denial of their motions to set aside the verdicts, made after the plaintiff MacDonald had complied with an order to file a remittitur of $1,000.In the course of the trial, the defendants also excepted to the admission of certain evidence, to the refusal of the court to withdraw certain issues from the jury, to certain instructions to the jury, and to the denial of certain requests for instructions.Transferred by Wheeler, J.

The accident occurred at about 9:20 p.m. when the right front of the plaintiff's northbound automobile struck the left rear of the tractor-trailer unit, which was parked without lights or flares on the northbound lane of the highway.Other facts appear in the opinion.

John W. Perkins, of Exeter, N. H., for plaintiffs.

Hughes & Burns, and Walter A. Calderwood all of Dover, N. H., for defendants.

DUNCAN, Justice.

The defendants moved to withdraw from the jury the issues of the defendants' violation of the statute which forbids parking upon a travelled way when it is practicable to park elsewhere (R.L. c. 119, § 26), the statutes requiring parking lights and flares to be displayed (§§ 27,28), and the statute pertaining to reflectors (§§ 8,10).The several motions were denied subject to exception.There was no dispute that when the accident occurred the defendant's vehicle was parked wholly upon the travelled way, without lights, and without flares.The highway was cement, 20 feet in width, with shoulders on either side consisting of black asphalt, varying in width between from 2 1/2 to 3 8/10, feet, bordered by grassedover gravel.At a point just north of the scene of the accident the entire shoulder was approximately 5.6 feet in width gradually increasing to 9 feet in width, a distance of 200 feet to the north.The defendant brought his vehicle to a quick stop in the right-hand lane when his lights suddenly failed because of a blown fuse.The trailer carried a load of approximately seven tons.The weather was clear, but it was ‘very dark.’There was no moon, and there were no street lights in the vicinity.There was evidence that the driver had a flashlight with him which he used after the accident.

The issue arising out of the failure to comply with the statute(Id.§ 28) requiring, in addition to parking lights, that flares be placed ahead and behind a truck parked on a highway unless plainly visible because of street or other lights, was properly submitted to the jury.The evidence which established violation of this statute was not disputed.The defendant's vehicle was wholly upon the travelled way, without parking lights and without flares.Its stop was due to the failure of its lighting system, and was more than a momentary stop within the meaning of the statute.The defendants contend that submission of the issue was not warranted because there was no evidence that the absence of flares was due to fault or negligence on their part.They urge that the statute implies that a driver shall have a reasonable time in which to place the flares, and that the evidence did not warrant a finding that such a period elapsed before the accident occurred.

While the statute was not intended to establish absolute liability regardless of fault (Bowdler v. St. Johnsbury Trucking Co., 88 N.H. 331, 333, 189 A. 353, and cases cited), and plaintiff's burden of going forward was sustained by a showing that the statute was not complied with.Proof of the failure to place flares when a vehicle is not ‘stopping momentarily’ establishes violation of the statute, even though it is obvious that a reasonable time after stopping is a prerequisite to compliance.

Legal fault is established by proof of causal violation of such a statute(seeFrost v. Stevens, 88 N. H. 164, 167, 184 A. 869), unless the offender can show that he is in fact without fault or responsibility therefor.A violation may be justified upon the ground of emergency not attributable to the operator (seeDunsmore v. Ralston Purina Co., 90 N.H. 470, 10 A.2d. 665), or excused by reason of impossibility of compliance due to circumstances beyond his control.Herman v. Sladofsky, 301 Mass. 534, 17 N.E.2d 879;Martin v. Tracy, 187 Minn. 529, 246 N.W. 6;Schwind v. Gibson, 220 Iowa 377, 260 N.W. 853; 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2682.The burden of meeting prima facie proof of violation by evidence of justification is upon the violator.Huston v. Robinson, 144 Neb. 553, 13 N.W.2d 885;Martin v. Tracy, supra;9 Blashfield, Cyclopedia of Automobile Law & Practice, Perm.Ed., 6113;Note, 131 A.L.R. 562, 603.

The driver's testimony that the accident occurred almost as soon as his truck stopped presented an issue for the jury, and was to be weighed in the light of the other evidence and any reasonable inferences to be drawn therefrom, tending to prove the contrary.It was for the jury to say whether the violation was excused, or constituted legal fault.

Similarly the issue with respect to violation of the statutory requirement that the ‘visibility of such reflectors shall not be impaired at any time’(§§ 8, 10, supra) was one to be determined by the jury.The plaintiff testified that there were no lights on the truck.There was evidence that the rear of the truck was ‘all dirty and dusty.’It was a fair inference that the reflectors located directly behind the wheels, under the rail projecting out below the rear doors were in the same condition.True, the driver testified that they were clean when the vehicle left Methuen, and an officer testified that he‘didn't look at them but * * * they showed up good’ after the accident.The jury was not obliged to believe this testimony.Watkins v. Holmes, 93 N.H. 53, 56, 35 A.2d 395.The other evidence afforded a basis for a contrary conclusion, and in this respect the case differs from Brickell v. Boston & Maine Transp. Co., 93 N.H. 140, 143, 36 A.2d 622, 624, relied upon by the defendants.

The exception to submission of the issue of violation of the parking statute stands somewhat differently.This statute(§ 26. supra) provides: ‘No person shall park or leave standing any vehicle * * * upon the paved or improved or main travelled portion of any highway, outside of a business or residence district when it is practicable to park or leave such vehicle standing off that portion of such highway.’It also expressly provides that it ‘shall not apply to a vehicle so disabled that it must be temporarily left’ upon the travelled way.

If it could be found that it was ‘practicable,’ at least so far as the width and firmness of the shoulder were concerned, to move the heavily loaded unit off the travelled way, it conclusively appeared that the vehicles came within the exception relating to disabled vehicles.While the driver was familiar with the highway, it did not follow that he knew without investigation whether the shoulder in the vicinity of where he stopped would accommodate his loaded vehicle.He had a flashlight, but he was travelling alone, and there was no evidence that he could both...