Mack v. Hoyt.

• Decision Date: 02 December 1947
• Citation: Mack v. Hoyt., 94 N.H. 492, 55 A.2d 891 (N.H. 1947)
• Parties: MACK v. HOYT.
• Court: New Hampshire Supreme Court

55 A.2d 891

MACK

v.HOYT.

Supreme Court of New Hampshire.

Dec. 2, 1947.

Exceptions from Superior Court, Merrimack County; Leahy, Judge.

Case by Charles H. Mack against Arthur J. Hoyt to recover for personal injuries arising out of an automobile accident.To review a nonsuit, plaintiff brings exceptions.

New trial.

Case to recover for personal injuries alleged to have been caused by the negligent operation of an automobile on November 24, 1944.The accident occurred shortly after 2 p. m. on the Daniel Webster Highway in Manchester about one-half of a mile north of the Maple Street intersection.The plaintiff accompanied by his wife was driving northerly in a two-door Terraplane coach.The first snow of the year had begun to fall about noontime and a wet snow was falling at the time of the accident, although no snow was piled up on the edge of the highway.As the plaintiff passed a truck proceeding southerly, his car went into a skid and collided with a Buick sedan driven by the defendant, which was following the truck.

Trial by jury with a view.At the close of the plaintiff's evidence, the defendant's motion for a nonsuit was granted subject to exception.A bill of exceptions was allowed the plaintiff by Leahy, J. Robert W. Upton and Frederick K. Upton, both of Concord, for plaintiff.

Sulloway, Piper, Jones, Hollis & Godfrey, and Jonathan Piper, all of Concord, for defendant.

JOHNSTON, Justice.

The highway at the scene of the accident consisted of two cement lanes, each nine feet in width.Adjoining the lanes were tar shoulders from three to three and one-half feet wide.The latter were bordered by gravel shoulders about five and one-half feet wide.The gravel shoulder on the west side was formerly a street railway road bed which had been filled.Next beyond this shoulder on the west was a level area of grassed-over gravel, which extended for a considerable distance north and south of the place of the accident and was approximately fifteen feet in width.The shoulders and the grassland were practically the same level as the cement roadway, although there was a slight westerly grade of the shoulders on the west to allow for drainage, and they were covered with snow.The road grade was slightly downward for southbound travelers.The highway was slippery.

As the plaintiff approached the truck, which might be found to be in the center of the road or very near it, he turned to his right to provide a safe margin of clearance and slowed down.His right wheels may have crossed onto the shoulder.After passing the truck, the plaintiff regained the cement traveling, he testified, at a speed of 15 to 20 miles an hour.As he did so, the rear wheels immediately skidded to the left, and the rear of the car slid sideways into the west lane.The car pointing to the northeast, skidded up the highway without further rotation.

The defendant testified that he saw the plaintiff's car as it began to skid and that he knew that the plaintiff was helpless to take saving action.He claimed that he immediately applied his brakes but was unable to avoid the collision, which took place about three feet to the west of the center line of the highway.The defendant's left front fender struck the left door of the plaintiff's car.The car of the former stopped about a length south of the point of contact, while it could be found that the car of the latter was driven back from 50 to 75 feet.

The parties do not agree concerning the speed of the defendant's car.The defendant says that it was 15 to 20 miles an hour while the plaintiff testified it was 30 to 40 miles an hour, the same speed as that of the truck.The defendant cannot be held liable because of the speed of his car prior to his seeing the skidding Terraplane.Due care does not require that one reduce one's speed or take other precautions in the case of risks that are not perceivable or expectable.Bolduc v. Stein, 94 N.H. 89, 47 A.2d 107;Martin v. Hodsdon, 93 N.H. 66, 69, 35 A.2d 402 and cases cited.The risk of another motor vehicle skidding into one's path is ordinarily such a risk and was in the present case prior to the start of the skid.In Beaumont v. Beaver Valley Traction Company, 298 Pa. 223, 148 A. 87, it was held that there was no duty on a motorman to so control his car as to avoid injury to any vehicle that might suddenly skid in his path.The following quotation from an earlier case, Tatarewicz v. United Traction Company, 220 Pa. 560, 563, 69 A. 995, 996, was given: ‘It is the duty of a motorman to keep a constant lookout ahead, and to have such control of his car as to avoid dangers ordinarily incident to its operation, and also to avoid such unusual and unexpected dangers as he saw in time to avoid.’

There is also conflict in the evidence as to the distance of the defendant's car from the plaintiff's at the beginning of the skid when the defendant saw the car of the latter.The defendant testified that he was 50 feet away and had time for nothing save the instinctive action of putting on his brakes, which he did and nothing else.The plaintiff, however, said at the trial that the sedan was 300 to 400 feet away at this time and claims that there was ample time and ample room for the defendant to have avoided the collision by...