McCarthy v. Souther

• Decision Date: 05 April 1927
• Citation: 137 A. 445
• Parties: McCARTHY v. SOUTHER. SAME v. MORRIS & CO.
• Court: New Hampshire Supreme Court

137 A. 445

McCARTHY

v. SOUTHER.

SAME

v. MORRIS & CO.

Supreme Court of New Hampshire. Hillsborough.

April 5, 1927.

[Copyrighted material omitted.]

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

Two actions by Annie McCarthy, administratrix, one against Harold J. Souther, the other against Morris & Co., to recover for the death of plaintiff's decedent, who, in crossing a street in Manchester on foot, collided with an automobile owned and driven by the defendant Souther, and sustained injuries from which he died. Cases transferred after trial by jury, and verdict for plaintiff in each case. On defendant's exceptions to the denial of a motion for a directed verdict, to the admission of evidence, to the failure to give requested instructions, and to the charge. New trial for defendant Souther, and judgment for defendant Morris & Co.

Tuttle, Wyman & Starr and L. E. Wyman, all of Manchester, for plaintiff.

McLane & Davis and J. R. McLane, all of Manchester, for defendants.

ALLEN, J. The denial of the motion for a directed verdict carried the subsidiary ruling that the evidence of the decedent's negligence was not conclusive. This ruling was correct. The evidence tended to show the following facts. The decedent undertook to cross from one sidewalk to the other of a street where there was no crosswalk, a distance of 30 feet, and collided with the car of the defendant Souther on its left side at about the center of the street as it came from the decedent's right. Before starting to cross, the decedent had looked to his right when the car was some 15 rods distant. It was dark, but the car's headlights were on. There were no other cars in sight approaching from that direction. At his gait it would take the decedent about 10 seconds to cross the street. He gave no attention to traffic after leaving the sidewalk.

Upon approaching the decedent, Souther was required to slow down his car and give timely signal. Laws 1921, c. 119, § 11 (P. L. c. 103, § 13). He was also required to have headlights on his car, with light visible at least 200 feet ahead. Laws 1921, c. 119, § 6 (P. L. c. 103, § 5). With such standard lights the driver could see ahead not only along, but to each side of, the course the car was taking, so as to give him plenty of time to turn to one side or the other to avoid striking any one visible in his path, if driving at a reasonable and proper speed. And such a speed would take into account such view ahead as might be had.

When the decedent started to cross the street, he had the right to rely on careful driving towards him. Quimby v. Railroad. 79 N. H. 529, 111 A. 302, and cases cited.

"In the absence of notice to the contrary, one person is justified in presuming that the other will act in accordance with the rights and duties of both; and this is not negligence, or imprudence." Lyman v. Railroad, 66 N. H. 200, 203, 20 A. 976, 978 (11 L. R. A. 364).

With the limited amount of traffic taken into account, it was not necessarily negligent for the decedent, if he first took a view as testified to, to think that he might cross the street safely without giving further attention to traffic. That it looked safe to undertake the crossing in the way he did might be found, and negligence in thus carrying out the undertaking is not conclusively shown. The sufficiency of the evidence to show Souther's negligence is not questioned, and his operation of the car as an effective cause of the collision requires no argument. That the decedent ran into the side of the car, if that is what he did, rather than that the car ran into him, is not a decisive circumstance. If the car should not have been in his path and if he was justified in assuming it would not be, his inattention while crossing the street would not be negligent.

While he was required to use due care in being on the watch, the same as Souther was, their situations were entirely different, and each was to be judged accordingly. Souther's duty to avoid pedestrians required him to use care in watching for their presence and to be ready to meet any careful conduct on their part that might be expected, while the decedent had no duty to be on the watch for cars whose approach or presence was not reasonably to be anticipated. If not required to anticipate the coming or presence of the car, he was not required to look out for it until he learned of the danger of its presence or approach. The testimony that he was not seen until an instant before the collision almost conclusively leads to the conclusion that Souther kept no watch for pedestrians at the time, if his car had proper headlights, but that neither of them was on the watch does not prove that both were at fault. Souther might be, and the decedent might not.

All the cases in this jurisdiction cited by the defendants, in which the injured person's inattention was held conclusively careless, are of accidents on railroads or street railways. The fact that an approaching locomotive or car on rails cannot veer from its path as a motor vehicle can makes a material difference in the ability of the engineer or motorman to avoid an accident as compared with the opportunities of the driver of the motor vehicle, and hence in the care required of the person in their path of being on the watch for them. And, as is said in Olsen v. Railroad, 82 N. H. 120, 123, 130 A. 213, 215:

"Since each case depends upon its own peculiar circumstances (Bonnin v. Railroad, supra [77 N. H. 559] 562 , Bass v. Railway, 70 N. H. 170, 172 ), perfect harmony among the decisions is scarcely to be expected."

The defendants excepted to the admission in discretion of a witness' estimate of the speed of the Souther car as she observed it when the decedent started to cross the street. The witness had had some experience in judging the speed of automobiles, and, while it was limited and she was only 15 years old, her inability to form an opinion of some value was not thereby conclusively disproved. She had occasion to form an opinion in her own personal interest to cross the street herself, and having some ability to observe and judge in such matters, she was reasonably found qualified to give her opinion. And when it is considered that she was the only witness of the accident aside from Souther and his passenger, the further finding involved in the admission of the evidence that the opinion might be of some help to the jury was also a reasonable one.

The defendants also excepted to the admission of the opinions of two witnesses, based on their general knowledge as experts, that the car was going with speed at the time of the accident. One expert was an automobile mechanic, and he based his opinion on the fact that the impact of the car with the decedent broke the handle of a door which the decedent struck against. At the trial the objection to the evidence was finally stated to be that the jury knew as much as the witness on the subject. If the opinion was the only one fairly to be drawn and was in relation to a matter of common and general knowledge, its admission was of harmless immateriality. If it was otherwise, it was admissible in discretion. Paquette v. Conn. Valley Lbr. Co., 79 N. H. 288, 290, 109 A. 836.

The other witness was a surgeon who formed his opinion from the character and extent of the decedent's injuries. Objection to his testimony was made on the ground that it was based on assumptions not included in the questions put to him. A careful study of the record shows that, so far as he made such assumptions his subsequent testimony disclosed them and there was evidence in the case to support them. The exception is overruled.

The exception to the admission of evidence showing the amount of the undertaker's bill is also overruled. Since the statute (P. L. c. 302, § 12) provides that "expenses occasioned to" the estate of the decedent are an element of damage, and since there was evidence that the bill was paid by the estate, the evidence was competent (Davis v. Herbert, 78 N. H. 179, 97 A. 879). The suggestion that death, not caused by the defendant's fault, would have eventually occurred to make necessary the expense does not meet the fact that this death was caused by such fault, and that the funeral expense was thereby occasioned. The fact that an event is bound to happen does not relieve one from his statutory responsibility for being the agency producing the happening.

Exception was taken to the refusal to charge specifically that there was no liability if the concurrent negligence of Souther and the decedent caused the collision. The jury were instructed that if the letter's negligence "caused or contributed to the cause of the accident," there could be no recovery. With other references of the charge taken into account, it seems clear that men of such intelligence as jurors have would understand from it that the concurrent negligence of the parties barred recovery. The requested instruction was substantially given with sufficient fullness.

The defendants excepted to the refusal to give instructions, in substance, that negligent inattention on the decedent's part while crossing the street barred recovery, and that the fact that he had nothing to control except his own locomotion was a material consideration in passing on his conduct.

For acting on requests for special instructions properly stating the law and applicable to the evidence, the rule has been established that:

"When the legal principle governing a case is fully stated in general terms, it is not error of law for the court to refuse instructions upon its application to particular evidence. The substance of the requested charge having been given, it is no ground of exception that it was not repeated, or that a particular form of expression was not used." Walker v. Railroad, 71 N. H. 271, 273, 51 A. 918.

"These requests for instructions being substantially included in the charge, the exception to their denial cannot be...