Martin v. Kelley

• Decision Date: 05 November 1952
• Citation: 97 N.H. 466,92 A.2d 163
• Parties: MARTIN v. KELLEY (two cases).
• Court: New Hampshire Supreme Court

Page 163

92 A.2d 163

97 N.H. 466

MARTIN v. KELLEY (two cases).

Supreme Court of New Hampshire.

Nov. 5, 1952.

Atlee F. Zellers and H. Thornton Lorimer, Concord, for the plaintiffs.

Sulloway, Piper, Jones, Hollis & Godfrey and Irving H. Soden, Concord, for the defendant.

DUNCAN, Justice.

The collision which gives rise to these actions occurred as the plaintiff wife (hereinafter called the plaintiff) was crossing the highway from west to east after leaving 'Dot's Restaurant,' so-called, on the westerly side of the highway. Her husband was waiting for her in an automobile on the easterly side of the highway and her minor son according to her testimony, accompanied her half way of the road and then ran on ahead to enter the automobile. She was struck at or just easterly of the center of the highway. The defendant, who was proceeding southerly, testified that he saw the plaintiff approaching the highway when he was two hundred feet away but expected her to wait until he had passed. As he described the accident, when he 'got about fifty feet from her, she made this dash out in front of me.' He testified that although he turned to his left, he was then unable to avoid striking her.

The plaintiffs claimed that the defendant was traveling at an excessive speed, that he failed to keep a proper lookout, and that he was at fault for failing to comply with requirements of R.L. c. 119, § 22, prescribing the conduct of an operator approaching a pedestrian on the traveled way. These issues were all submitted to the jury. The instructions relating to speed quoted R.L. c. 119, § 29, as amended by Laws 1949, c. 286, § 1, in full and dealt with the prima facie limit of fifty miles an hour established by section 30, subd. IV as so amended. The plaintiffs excepted to the failure of the Court to instruct the jury with respect to the following portion of the amended section 30: 'The driver of every motor vehicle shall, consistent with the requirements of section 29, drive at an appropriate reduced speed * * * when approaching a hill crest * * *.'

There was evidence that a person near the highway in front of the restaurant could first see a southbound automobile approaching the scene of the accident as it came over a rise at a distance of 676 feet away. Two-thirds of the automobile would be visible at 500 feet and it would come into full view at a distance of 393 feet. The operator of such an automobile could see the top of a pedestrian's head from a point 650 feet away, and increasingly more as he continued south. The highway north of the restaurant was practically straight over the distance involved, and for over a hundred feet north of the restaurant was 'almost level' according to a civil engineer who testified. The same witness testified: 'The high point of the hill, if you can call it that, is about in front of the restaurant, but the change in the area shown is very slight.' While 'the area shown' does not clearly appear from the record, other testimony of the witness indicates that it extended beyond a utility pole more than 100 feet to the north. The testimony relating to obstruction of the view indicated that there was no appreciable grade for about 400 feet at least. The defendant testified that he first saw the plaintiff when he was about 200 feet away.

Under the circumstances thus disclosed there was no error in the denial of the plaintiffs' request. The situation presented resembles that considered by the court in LaFlamme v. Lewis, 89 N.H. 69, 192 A. 851, under a statute enacted in 1927 and repealed ten years later, which imposed a prima facie limit of fifteen miles an hour in 'traversing a grade upon a highway when the driver's view is obstructed within a distance of one hundred feet'. Laws 1927, c. 76, § 2; repealed by Laws 1937, c. 125, § 3. The plaintiffs concede that the present statute was designed to apply when a hill is such as to obstruct the view, and this appears to be clearly so. See Woodbridge v. Desrochers, 93 N.H. 87, 89, 35 A.2d 802. In LaFlamme v. Lewis, supra, 89 N.H. 73, 192 A. 854, it was said: 'There is no suggestion in the record that the accident happened upon a * * * grade within the meaning of the act. * * * If [the road] was not entirely level, no appreciable grade was mentioned * * *. Under these circumstances, the statutory provisions above quoted were clearly inapplicable * * *.'

The statute in its present form bears no substantially different relation to the facts of this case. It was operative only 'when [the defendant was] approaching a hill crest' which means the portion of the grade which obscured his view. See Woodbridge v. Desrochers, supra; Reuhl v. Uszler, 255 Wis. 516, 39 N.W.2d 444. When the view ceased to be obstructed the statute ceased to apply, and the defendant's conduct was thereafter governed by the remaining requirements of sections 29 and 30 and those of section 22, concerning all of which the jury was instructed. If the defendant had reduced his speed upon the hill, he would have been free to resume speed when his view was no longer obstructed, provided he complied with the statutes placed before the jury.

The plaintiffs argue that violation of the statute could be found causal because the defendant had insufficient time to act to avoid the plaintiff, if he came over the hill at a speed of fifty miles an hour. It cannot be gainsaid that if he had arrived at the crest of the hill an appreciable time after he did, the accident might not have occurred. But this does not establish that any fault prior to his arrival at the crest was a violation of duty to the plaintiff, or causal of the accident which ensued. 'It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute and that he would not have been injured if the duty had been performed. He must go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him.' Flynn v. Gordon, 86 N.H. 198, 200, 165 A. 715, 716.

The shortness of the time available for action by the defendant was not accounted for by his speed on the hill, but by the length of time which it took the plaintiff to cross from where she looked both ways, to where she was struck near the center of the highway. There was evidence that this was from four to seven seconds. If the defendant traveled at a speed of fifty miles an hour, he would thus have been from three to five hundred feet away when he first could have had notice that the plaintiff intended to cross. He would then have been south of the crest of the hill; and by as much as two hundred feet if the time was four seconds. If his average speed in approaching the scene of the accident was less, he would have been correspondingly farther south of the crest when the plaintiff started to cross. His speed as he ascended the hill could not reasonably be found causal of any inability to take saving action while he was traveling over the stretch of highway extending for five hundred feet south of the hill. The case was submitted to the jury under the emergency doctrine, Bonenfant v. Hamel, 96 N.H. 228, 73 A.2d 125, as well as the requirements of sections 22 and 29...