Maiwald v. Pub. Serv. Co. Of N.H..

• Decision Date: 06 March 1945
• Citation: 41 A.2d 247
• Parties: MAIWALD v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE.
• Court: New Hampshire Supreme Court

41 A.2d 247

MAIWALD

v.PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

Supreme Court of New Hampshire.

Feb. 6, 1945.

Rehearing Denied March 6, 1945.

Transferred from Superior Court, Hillsborough County; Young, Judge.

Case by Minna Maiwald against Public Service Company of New Hampshire for injuries sustained by plaintiff while riding as a passenger on defendant's bus. Trial by a jury resulted in a verdict for plaintiff, and the case was transferred to Supreme Court.

Judgment for defendant.

Case, for negligence. The plaintiff received personal injuries on May 10, 1941 while riding as a passenger in a bus of the defendant's. The bus was being operated southerly on Elm Street in Manchester and was brought to a very sudden stop by the driver in order to avoid collision with a car that turned abruptly to its right in front of the bus at the intersection of Pleasant Street. The plaintiff was thrown from her seat to the front end of the bus. A trial by jury resulted in a verdict for the plaintiff.

The defendant excepted to the denial of its motions for a nonsuit, for a directed verdict, to set aside the verdict, and for judgment for the defendant notwithstanding the verdict. The defendant also excepted to rulings of the Court relative to the admission and the exclusion of evidence, to certain portions of the charge and to the failure of the Court to give certain requests for instruction. Transferred by Young, C. J. McLane, Davis & Carleton and Robert P. Bingham, all of Manchester, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell and Robert P. Booth, all of Manchester, for defendant.

JOHNSTON, Justice.

In order to avoid collision with an automobile driven by one Frederick Kulbacki, the defendant's driver, Cochran by name, applied his brakes and made an emergency stop. Both vehicles had stopped at Merrimack Street. Mr. Kulbacki got slightly the better start as the bus had to pull out from its stop. Both vehicles proceeded southerly, the bus 15 to 20 feet from the curb and the car some three feet easterly of the bus. The bus driver Cochran noticed the car when they were opposite the second store from Pleasant Street. The distance between the two cross-streets was about 250 feet. When the bus was approximately 25 feet from Pleasant Street, which led from Elm Street on the right, Mr. Kulbacki abruptly, without warning of any sort, turned to his right across the path of the bus to go into the last-named street. When he started to turn, Kulbacki at the most was a car length in front of the bus. Some of the witnesses estimated the distance at 8 to 10 feet. At the start of the turn of the car, Cochran applied his brakes and stopped the bus in about 25 feet. According to him he missed the car by four or five inches; according to another witness he stopped within two feet of the car. No claim is made that the bus could have gone further in the straight path it was following and so have eased the application of the brakes and avoided throwing the plaintiff, Mrs. Maiwald, from her seat. The application of the brakes was made in an emergency. It barely averted collision with the car.

Due care did not require Cochran to anticipate the abrupt turn in the path of the bus without signal when the car was not over a car's length in front and the turn was such that the bus driver had only a distance of some 25 feet ahead of him in which to take saving action. The bus driver had the right of way. Although the driver was subject to the rule of reasonableness, he had the right to assume until he should have known otherwise, that the car driver would yield the right of way. Under the circumstances of this accident he had the right to this assumption until the car actually turned. The fault of the car driver was not of such degree or kind that it should have been anticipated as in the case of Himmel v. Finkelstein, 90 N.H. 78, 4 A.2d 657.

The emergency was not due to fault of the driver of the bus. He testified that the car stopped at the Pleasant Street crosswalk because of some pedestrians, although this fact is disputed and is not especially important. However the plaintiff argues that because he testified that he did not see the pedestrians until after he stopped and because he could not recall his distance from the car at the time he claimed it stopped, he was inattentive, did not notice the turn of Kulbacki as soon as he should have and so was to blame for the emergency. But failure to see pedestrians, if there were such, and failure to recall the distance of the bus away at a particular instant were with respect to matters that were taking place when the driver was straining every nerve to avoid collision with the car. Engrossed in this purpose, the operator of the bus cannot reasonably be required to observe and to remember all details of the picture. From the failure to note certain circumstances under these conditions, it cannot reasonably be inferred that he was...