Piatek v. Swindell

• Decision Date: 28 June 1930
• Citation: 151 A. 262
• Parties: PIATEK v. SWINDELL.
• Court: New Hampshire Supreme Court

151 A. 262

PIATEK

v. SWINDELL.

Supreme Court of New Hampshire. Hillsborough.

June 28, 1930.

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

Action by Walentz Piatek against Kenneth G. Swindell. Verdict for plaintiff, and case transferred on defendant's exceptions.

Judgment on the verdict.

Action of negligence for personal injuries. On a jury trial the plaintiff received a verdict. The defendant excepted to the court's refusal to order a directed verdict for him, and to the allowance of argument. The material facts appear in the opinion. Transferred by Scammon, J.

William G. McCarthy, of Manchester, Peter J. King, of Concord, Warren, Howe & Wilson, of Manchester, and John M. Stark, of Concord, for plaintiff.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for defendant.

ALLEN, J.

I. The plaintiff was a passenger in a truck driven easterly and struck at an intersection of streets in Manchester by the defendant's car driven northerly. There Was evidence that the truck had the right of way through the intersection by its first arrival there and that the defendant was exceeding the statutory speed limit. His negligence is here conceded, but it is claimed that the plaintiff was conclusively shown also to be negligent. The plaintiff was sitting on the floor of the cab of the truck with his right leg hanging out of the cab and his right foot resting on the right-hand running board. There was no room for him on the seat of the cab, and it was inconvenient for him to ride in the rear part of the truck. He was in the truck on its business, and its trip was a short one. As the plaintiff was traveling, a blind corner shut off the view of the intersecting street until the intersection was reached. The plaintiff saw the defendant's car at some distance away when the truck entered into the area of intersection, and thought the truck would leave the intersection before the defendant reached it. He did not observe the defendant's speed, but his thought was well founded on the premise that the speed was not excessive. After his observation of the defendant's car, he directed his attention elsewhere, and the collision took place without his having realized its imminence.

If it may be said that the plaintiff was careless to sit in such a position as he did, it was because of dangers likely to be encountered. And if in his position he took proper precautions and kept reasonable watch against such dangers, he is not to be held careless because he did not look out for dangers he had no occasion to anticipate. There is no carelessness in encountering dangers not reasonably to be sensed and not in fact known. The plaintiff's careless position would no more be a cause, in a legal sense, of injury resulting from such dangers than if the driver of the truck were known to him to be incompetent. If his position was careless, it was not so in his relationship with the defendant, from whom no menace was indicated.

It is not negligent for one to assume that another will do his duty when there is no occasion to assume otherwise, and the plaintiff's position was analogous to that of a pedestrian who in crossing a street is not required to be on the lookout for trouble not reasonably to be anticipated. McCarthy v. Souther, 83 N. H. 29, 32, 137 A. 445. If the defendant's car had been stationary, clearly the plaintiff would not have been careless in failing to keep it under observation, and, considering its distance of four or five rods from the intersection when he did observe it and the time it would take to reach the intersection if it was coming at a proper speed, negligence in failing to keep it in view in that situation may at least be questioned. He correctly judged distance,...