O'Malley v. McGillan

• Decision Date: 07 March 1933
• Citation: O'Malley v. McGillan, 86 N.H. 186, 165 A. 279 (N.H. 1933)
• Parties: O'MALLEY v. McGILLAN (two cases).
• Court: New Hampshire Supreme Court

165 A. 279

O'MALLEY

v. McGILLAN (two cases).

Supreme Court of New Hampshire. Hillsborough.

March 7, 1933.

Plaintiff's claim was one of continuing disability resulting from accident, and though defendant asserted that any disability under which she labored during period resulted from birth of child, it might be found that her injuries made it hard for her to do her work including care of child, and in such view of the evidence it was proper to explain why she did not have help for a time, in addition to which no instructions against a possible misuse of the evidence were sought.

Court instructed jury, in substance, that defendant acted in sudden emergency, mistaken choice of a course of conduct which did not lead to safety was not necessarily negligent, although another course of conduct was open to him which would have led to safety, and since evidence did not disclose a situation in which defendant was entitled to invoke benefit of emergency doctrine, the instruction given was unduly favorable to him and he was in no position to complain because law on such point was not more fully explained to jury.

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

Separate actions of case for negligence by Peter G. O'Malley and by Rita O'Malley against Francis E. McGillan, tried together by jury, with verdicts for both plaintiffs.Transferred on defendant's exceptions to admission of evidence and to the denial of a requested instruction.

Judgments on the verdicts.

The plaintiffs were passengers in an automobile driven by the defendant, and the plaintiff Rita was injured as the result of a collision with another car upon July 17, 1927.The plaintiff Peter is her husband.Other facts are stated in the opinion.

Robert W. Upton and Laurence I. Duncan(Laurence I. Duncan, orally), both of Concord, for plaintiffs.

Devine & Tobin (John E. Tobin, orally), of Manchester, for defendant.

BRANCH, Justice.

1.The plaintiff Rita testified, subject to the defendant's exception, that for a period of six weeks in 1929she went without household help which she needed because she could not afford it.It is now argued that "testimony as to her financial inability to engage help was immaterial to any issue in the case" and prejudicial to the defendant.The plaintiff's claim was one of continuing disability resulting from the accident.The defendant asserted that any disability under which she labored during the period in question resulted from the birth of a child.It might be found, however, that her injuries made it hard for her to do her work, including the care of the child, and in this view of the evidence it was proper to explain why she did not have help for a time.Maravas v. American Equitable Assur. Corporation, 82 N. H. 533, 542, 136 A. 364;Laird v. Boston & M. Railroad, 80 N. H. 377, 380, 117 A. 591, and cases cited.No instructions against a possible misuse of the evidence were sought.The exception is, therefore, overruled.

2.The defendant requested the following instruction: "3.Where a person is suddenly called upon to act in an emergency this fact must be taken into consideration in determining the quality of his act.The excitement incident to such a situation naturally affects the judgment of a prudent man and has a tendency to prevent it from doing its best work.If the circumstances surrounding this accident caused an error in judgment on the part of the defendant, his act is not necessarily negligent."

The court instructed the jury in substance that if the defendant acted in a sudden emergency, his mistaken choice of a course of conduct which did not lead to safety was not necessarily negligent although another course of conduct was open to him which would have led to safety.

The defendant excepted to the denial of the above request, and it is now argued that the charge did not give him the full benefit of the so-called emergency doctrine because the second sentence of the request was not included therein.We need not consider the merits of this argument, because we find in the record no evidence which called for an application of that doctrine in judging the conduct of the defendant.

The principle has been stated as follows "If a person is suddenly called upon to act in an emergency involving the safety of the life or limb of a human being, this fact must be taken into account in determining the quality of the act."Carney v. Concord St. Railroad, 72 N. H. 364, 372, 57 A. 218, 222."The existence of an emergency is merely one of the factors in the light of which the conduct of the actor must be judged.The standard of conduct does not vary in such cases.It must be reasonable."Jones v. Boston & M. Railroad, 83 N. H. 73, 84, 139 A. 214, 221.For other statements of the same principle, see45 C. J. tit.Negligence, § 92; note to Lemay v. Springfield, etc., Company, 210 Mass. 63, 96 N. E. 79, in 37 L. R, A. (N. S.) 43.

The question whether the defendant's conduct...