Pepin v. Beaulieu
| Decision Date | 21 May 1959 |
| Parties | Theresa E. PEPIN v. Robert BEAULIEU. |
| Court | New Hampshire Supreme Court |
Craig & Craig, Manchester, William H. Craig, Jr., Manchester, orally, for plaintiff.
Wiggin, Nourie, Sundeen, Nassikas & Pingree and Malcolm Mecartney, Jr., Manchester, for defendant.
McLane, Carleton, Graf, Green & Brown, Manchester, Stanley M. Brown, Manchester, orally, as amici curiae.
On the night of the accident shortly before 9:00 p. m., the plaintiff was riding as a passenger in a motor vehicle owned by her and being operated by her husband. It was snowing lightly and the roads were wet and slippery. They had previously stopped for plaintiff's brother and were proceeding southerly on South Willow Street intending to pick up the brother's 'girl friend' who lived on the easterly side of South Willow Street beyond Martin Street. Plaintiff's operator made a right-hand turn into Martin Street, backed out into South Willow Street in a southerly direction 25 to 50 feet and pulled ahead to the curb on the right-hand side of the street heading north and stopped the motor vehicle. The lights were on. During the process of backing up, plaintiff's operator looked several times north and south but observed no other vehicles. He had an unobstructed view of approximately 1,000 feet to the south.
After stopping the motor vehicle, he started to open the door and for the first time observed the lights of defendant's car coming from the south about 125 feet away. He closed the door and told the passengers to 'Brace up' and the vehicle was immediately struck a hard blow in the rear. There was no other traffic on the highway at the time, and the defendant had ample room to pull out and pass plaintiff's vehicle.
The blow 'snapped [plaintiff's] neck back and forth.' No immediate ill effect was experienced, but the next day she felt a pain in her back and later a pain below the shoulder blade. She consulted an orthopedic surgeon who took X-rays, which were negative, and, pursuant to his advice, took certain corrective exercises. The pain persisted into May following the accident when she was discharged by the orthopedic surgeon. The 'aches or pains' continued, and she consulted two chiropractors who administered certain treatments which temporarily relieved the pain. She last consulted a chiropractor in December, 1957. The plaintiff attempted to work at Lamex in February, 1957 but after two and one-half months was compelled to give up because of pains in her back. At this employment she earned approximately $50 to $55 per week.
The defendant's principal contention is that the plaintiff's operator was contributorily negligent as a matter of law in failing to see the defendant's motor vehicle approaching as he backed out of Martin Street and across South Willow Street.
Admittedly the plaintiff's operator had a view of at least 1,000 feet to the south, and he failed to see defendant's car approaching until shortly before it struck his motor vehicle. The fact that plaintiff's operator did not take an efficient look or 'was careless in the manner he looked' (Niemi v. Boston & M. Railroad, 87 N.H. 1, 3, 173 A. 361, 362, 175 A. 245) does not necessarily under the circumstances of this case preclude a finding that he exercised due care. It is true there was evidence from which a jury could find he was negligent, but from all that appears in the record, the accident would have occurred whether his car was parked, as it was, for several seconds, or for several days. The burden was upon the defendant to establish that plaintiff's operator's negligence was causal. It was findable that the accident would have occurred if he had reached his parking position from a course that did not involve turning the vehicle about. It was not error to submit the question of contributory negligence to the jury. Cf. Colburn v. Normand, 96 N.H. 250, 74 A.2d 559, 563.
Defendant further contends it was error to allow the testimony of the chiropractor to go to the jury because it was contradictory to plaintiff's other expert, 'inaccurate' and 'based on such inferior and erroneous knowledge that it was an abuse of the Court's discretion in permitting the jury to consider it.'
Plaintiff's chiropractor testified, in response to a hypothetical question, that the cause of plaintiff's complaint was the automobile accident. Insofar as it may be argued that there was a disagreement between plaintiff's medical expert and the chiropractor, the witnesses were not basing their opinions concerning the plaintiff's injuries on the same region of her back. The medical expert found complaints of pain in the neck or upper dorsal spine, whereas the chiropractor testified there was trouble in the fifth dorsal vertebra.
We cannot say that this testimony was 'so obviously improbable or preposterous, as to require that the verdict be set aside.' Colburn v. Normand, supra. If there was any discrepancy or failure on the part of plaintiff's experts to agree in toto, it went to the weight of the evidence, and it was for the jury to decide how much of the evidence to accept or reject. The Court properly charged the jury that they must find on the balance of probabilities that plaintiff's injuries resulted from defendant's wrongful act.
The defendant excepted to the submission of the issue of lost wages to the jury as an element of damages. The Court properly charged the jury that in order to recover for loss of wages the plaintiff would have to prove that she probably would have worked but for the accident, that she was prevented from working because of the accident, and further that she would have to establish the amount of wages lost during this period.
We are of the view that there was sufficient evidence upon which a jury could find that the plaintiff did lose wages as a result of the accident and the amount thereof. Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529.
The plaintiff was employed at MKM in 1955 and left six months before her child was born. Five months after the child's birth, she commenced work at Sibulkin Shoe Co., where she continued to work until two days before the accident. In February, 1957, following the accident, she secured employment at Lamex, a plastic manufacturing concern, running a plastic injector...
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