Patterson v. Corliss

• Decision Date: 29 December 1972
• Docket Number: No. 6368,6368
• Citation: 298 A.2d 586,112 N.H. 480
• Parties: Raymond O. PATTERSON, Administrator v. William E. CORLISS. Harold G. PERCY v. William E. CORLISS.
• Court: New Hampshire Supreme Court

Page 586

298 A.2d 586

112 N.H. 480

Raymond O. PATTERSON, Administrator v.William E. CORLISS.

Harold G. PERCY v.William E. CORLISS.

No. 6368.

Supreme Court of New Hampshire.

Dec. 29, 1972.

James J. Kalled, Wolfeboro, by brief and orally, for plaintiffs.

Nighswander, Lord, Martin & KillKelley, Laconia (David J. KillKelley, Laconia, orally), for defendant.

DUNCAN, Justice.

The plaintiff administrator's intestate, Ethel M. Percy, and her husband Harold G. Percy, brought these actions to recover damages arising out of a collision whch occurred on June 8, 1967, at Hebron, when an automobile operated in a southerly direction by the defendant was in collision with the plaintiff husband's automobile, operated by the plaintiff wife, when it entered the highway from a driveway on the westerly side, for the purpose of proceeding north.Trial was by jury, with a view, and verdicts were returned for the plaintiffs.The plaintiff Ethel herein referred to as the plaintiff, has deceased since the trial, and her administrator has appeared to prosecute her action.

In the course of the trial, the defendant excepted to denial of motions for nonsuits and directed verdicts and to denial of his motion to put certain questions to the jurors on voir dire.He also excepted to certain instructions to the jury, to the denial of certain of his requests for instructions, and to the denial of his motions to set aside the verdicts and for judgments notwithstanding the verdicts.The questions of law presented by these exceptions were reserved and transferred by the Presiding Justice, King, J.

The accident in question occurred on Route 3 in Hebron, near the Bridgewater town line, in the late forenoon as the plaintiff Ethel, aged 64, was leaving the Whip-o-will Motel and cottages where she was employed as a cook.It was raining, and the highway was wet and rain-slicked.She was operating a 1965 Chevrolet stationwagon.The defendant, aged 25, was operating a 1964 Chevrolet convertible, with temporary plates.

It was not disputed that following the collision, the defendant's vehicle came to rest just north of the Whip-o-will driveway, where it was wholly in the southbound lane, close to the centerline, with the left front wheel resting on its rim; and that the plaintiff's vehicle was opposite and somewhat north of the defendant's, headed in a northerly direction on the easterly shoulder, its right wheels in or close to the gravel ditch.

In support of his motions for nonsuits and directed verdicts, the defendant relies upon the proposition that the plaintiff's testimony postulated a physical impossibility, and that she is bound by her own testimony and should not be permitted to recover.Bartis v. Warrington, 91 N.H. 415, 20 A.2d 642(1941).The argument is that it was impossible that plaintiff's vehicle could have been struck 'while over at the edge of the northerly lane and then have ended up as shown by the photographs' taken before the vehicles were moved.

The plaintiff testified that when she entered the highway there were no vehicles in sight, and that the defendant's automobile came into view over the crest of a hill to the north as she reached the northbound lane and that it 'immediately started coming onto my lane . . . more or less sideways . . . so much in my lane that I couldn't proceed, and I pulled out to the very edge of the ditch . . . and took my foot off the accelerator . . . he hit me right where the door hinge and windshield is . . . and I felt myself going into the ditch and sliding backwards. . . .'

The defendant testified that he was travelling at a speed of fifty miles an hour as he came over the hill after rounding a curve to his left, that when he saw the plaintiff entering the highway he applied the brakes, 'went into a skid . . . I let up . . . tried to go around her, . . . turned back, and at this moment was impact. . . .'

The photographs showing the damage to the automobiles make it plain that the vehicles could not have come together when the plaintiff's car was crosswise of the road and half in the southbound lane, as the defendant testified.Rather they indicate that the left front of the defendant's vehicle struck the left side of the plaintiff's car in such a way that the plaintiff's car must have been northbound and headed toward the ditch, as her testimony and other evidence indicated.A photograph of marks upon the highway showed gouge marks made by the defendant's left front wheel, proceeding across the center line from the north to the southbound lane, together with a tire track or 'erasure' mark leading into the gouge mark.This track or mark commenced several feet north of the gouge mark and in part ran parallel to the center line at a distance of three to four feet within the northbound lane.

Thus from the evidence the jury could reasonably find that the accident happened substantially as the plaintiff said it did: that her car was struck in the northbound lane while it was on an angle toward the ditch, and that the force of the collision moved it backward toward the south, while the defendant's car caromed across the center line into the northbound lane.

There was evidence that the crest of the hill was some four hundred fifty feet from the driveway from which the plaintiff entered the highway.If the defendant was travelling at a speed of fifty miles an hour as he testified, it is true that the plaintiff would have reached the northbound lane within the time that it took the defendant to reach the point of collision.This was what the plaintiff testified did happen.The jury was not bound to accept the defendant's testimony as to his speed, and could have found from expert testimony that his vehicle must have been 'hydroplaining' upon the water on the highway, so that the slope of the road toward the east would have caused it to gravitate into the plaintiff's lane of travel until such time as the defendant recovered control so as to execute the turn back toward the southbound lane which he testified he made.

Accordingly, the defendant's argument of physical impossibility is not accepted.We are satisfied that the issues of defendant's negligence and plaintiff's contributory negligence were issues for the jury, and that the motions for nonsuits and directed verdicts were properly denied.For like reasons we see no merit to the defendant's argument based upon the rule of Bartis v. Warrington, 91 N.H. 415, 20 A.2d 642, and no error in the instructions to the jury that both parties were under a duty to maintain a proper lookout and to keep their vehicles under proper control.

The defendant excepted to the definal of several requests for instructions, and places particular emphasis upon the denial of those relating to 'pure accident' and 'skidding'.The defendant testified that he skidded as he applied the brakes just over the crest of the hill; but he made no claim that his skidding caused the collision.He testified that he turned to the northbound...