Pickard v. Morris

• Court: New Hampshire Supreme Court
• Writing for the Court: PAGE, Justice
• Citation: Pickard v. Morris, 91 N.H. 65, 13 A.2d 609 (N.H. 1940)
• Decision Date: 28 May 1940
• Parties: PICKARD v. MORRIS.

13 A.2d 609

PICKARD

v. MORRIS.

Supreme Court of New Hampshire. Rockingham.

May 28, 1940.

[Copyrighted material omitted.]

Transferred from Superior Court, Rockingham County; Connor, Judge.

Action on the case by Greenleaf W. Pickard, Sr., individually and as father and next friend of Greenleaf W. Pickard, Jr., against Frank E. Morris to recover damages sustained in automobile collision. Verdicts for the plaintiff in both capacities, and actions transferred on defendant's exceptions.

Judgment for the plaintiff in his individual action; judgment for the defendant on the action of the next friend.

Actions on the case for negligence based on a collision at an intersection in Stratham between the car of Pickard, Sr., and a truck driven by the defendant. The plaintiff's car was being driven by Pickard, Jr. As an individual, the father seeks to recover for damages to his car and for the expenses incident to the personal injuries sustained by his son. As father and next friend he sues for damages to his son because of injuries sustained in the collision. Trial by jury, with a view. Verdicts for the plaintiff in both capacities.

The defendant seasonably moved for nonsuits and directed verdicts. The motions were denied, and the defendant excepted. The facts appear in the opinion.

William H. Sleeper, of Exeter, for plaintiff.

McLane, Davis & Carleton, of Manchester (George F. Nelson, of Manchester, orally), for defendant.

PAGE, Justice.

The scene of the collision is an intersection of Routes 101 and 108. Route 108 at this point runs approximately west and east between Exeter and Durham, but curves slightly to the north at or near the intersection. Route 101 from Portsmouth enters the intersection upon a sharper curve from the south. Between Exeter and the intersection the two routes follow a common course. To a driver approaching from Exeter, the intersection is not visible until he reaches a crest about 150 feet distant. At this crest such a driver has a view of the road from Portsmouth for only 150 feet beyond the intersection.

The defendant was driving from the direction of Portsmouth towards Exeter, with the intention of using Route 101 all of the way. Greenleaf W. Pickard, Jr. (hereafter called the plaintiff) was going from Exeter to Durham, intending to use Route 108 all of the way. Each was using his right-hand lane, but the lanes crossed at the intersection.

The plaintiff's testimony was at some points self-contradictory, but taken as favorably to him as may be, its material features will be stated. As he came to the crest, his speed was towards forty miles an hour. He was familiar with the intersection, and at the crest he took his foot from the accelerator and reduced his speed to about thirty miles, which he maintained until a few moments before the collision. From the crest he noted the approach of the defendant's truck. Each vehicle was then about 150 feet from the point of collision, and he estimated the speed of the truck at the moment as thirty miles an hour, the same as that of his own car.

The plaintiff knew the law of the road at intersections. P.L. c. 90, § 3. That law provides that when "a person traveling on a highway with a vehicle approaches an intersecting way * * * he shall grant the right of way, at the point of intersection, to vehicles approaching from his right'; provided, that such vehicles are arriving at the point of intersection at approximately the same instant." This does not mean that the one in the less favored position may, by entering the intersection first, free himself from liability under the statute. "The statute imposes upon such driver the duty of determining as a man of ordinary prudence whether, under all the circumstances, his arrival at the intersection will sufficiently precede that of the car crossing his line of travel to warrant the reasonable belief that he can safely cross the intersecting street ahead of it. This involves an appraisal of the various factors which make for such danger." Gendron v. Glidden, 84 N.H. 162, 166, 148 A. 461, 464. "In short, the invocation of the statute raises an issue of fact in the first instance, namely, whether or not a man of reasonable prudence in the position of the person approaching from the disfavored direction would reasonably have concluded that he could pass the intersection without danger of collision. If the finding on this issue is in the negative, the rule applies; otherwise not." Ib., 84 N.H. 168, 148 A. 465.

It follows from the foregoing that a traveler approaching a road intersecting from the right is bound to take a reasonably good look and to form a reasonably correct judgment as to the dangers involved in the situation. If he sees all that would be seen by a man of average prudence in his position and forms a reasonably prudent judgment that his entrance into the intersection will not incur danger of collision, he may enter. So a driver who stops before entering, looks for a reasonable distance to his right (in which distance no car is coming), may be found entitled to enter without holding back for others. Fitzpatrick v. Parsons, N.H., 10 A.2d 660; Baker v. Salvation Army, N.H., 12 A.2d 514.

When the plaintiff first saw the intersection and its surroundings he took a reasonably good look at traffic approaching from the right. But his judgment of the situation disclosed could not be found to have been reasonable. His observation showed him that his car and the defendant's truck were equidistant from the intersection and going at the same speed. The only reasonable conclusion was that, if he continued at the same speed, there would be a collision. As the situation then appeared, he would have to yield the right of way by slowing down, even if he did not stop. Yet he went on at unabated speed until he was actually in the intersection. So far as the discussion has gone, it conclusively appears from his own testimony that his failure to obey the statute was at least partly the cause of the collision.

He claimed, however, that the situation changed as he proceeded so as to warrant the reasonable belief that he could pass through the intersection without danger of collision. The claim requires consideration in some detail of the various forms the situation might be found to have taken.

First we take the situation testified to by the defendant, who said that he actually stopped before entering the intersection, in order to give the right of way to a third car approaching from his right on Route 108. Assuming this to have been the true situation, the plaintiff could not be found to have complied with the first requirement to establish his own right to cross the intersection ahead of the defendant, for it would conclusively appear that the plaintiff did not reasonably survey the changing situation. The plaintiff testified positively that he did not see the defendant stop. He was also positive in the statement that he could not remember seeing any third car approaching the intersection by way of Route 8 from the east. His claim that if...