Quint v. Porietis

• Decision Date: 20 December 1966
• Citation: 225 A.2d 179,107 N.H. 463
• Parties: L. Wilder QUINT, Adm'r v. Konstantinis PORIETIS.
• Court: New Hampshire Supreme Court

Page 179

225 A.2d 179

107 N.H. 463

L. Wilder QUINT, Adm'r v. Konstantinis PORIETIS.

Supreme Court of New Hampshire.

Argued Nov. 2, 1966.

Decided Dec. 20, 1966.

MaLane, Carleton, Graf, Greene & Brown and G. Peter Guenther, Manchester, for plaintiff.

Wiggin, Nourie, Sundeen, Nassikas & Pingree and William S. Orcutt, Manchester, for defendant.

DUNCAN, Justice.

When this fatal collision occurred the plaintiff's intestate, a resident of Concord, was driving his automobile southerly to West Roxbury, Massachusetts, while the defendant, a resident of Toronto, Canada, who had traveled to Concord on the preceding day, was driving southerly with his wife and children to Jamaica Plain, Massachusetts. He overtook the decedent south of Manchester as he approached the Bedford exit of the Everett Turnpike. The accident occurred at about 8:30 A.M. on a bright clear day. The southbound lane consisted of a travel lane and a passing lane having a total width of twenty-five feet, and an emergency land some twelve feet in width. the collision occurred in the travel lane, about opposite the Bedford exit, which is approximatelyn midway of a straight stretch at least eight-tenths of a mile in length. The front of the defendant's automobile struck the rear of the decedent's vehicle.

The decedent never regained consciousness following the collision, and the only eyewitnesses were the defendant and his wife. The defendant testified that he was looking at one of the directional signs, and that after he passed it, he 'turned my eyes back on the road and I see a car ahead of me either standing or backing up or moving very slow ahead, which I could not tell because it was too close.' He estimated the distance between the vehicles when he first saw the decedent's car as thirty to forty feet. His wife estimated it at fifty feet. He testified that he tried to swerve but did not succeed. He estimated his own speed at sixty miles an hour, when he first saw the car ahead.

A state trooper who arrived at the scene shortly after the collision testified that he determined that 'both (drivers were) going straight ahead, southbound' in the travel land, although he agreed on cross-examination that it was a 'first assumption that (the decedent) was confused and was stopping, or backing, trying to make up his mind' because the signs at that time were confusing to some travelers.

The plaintiff contends that the Trial Court erred in submitting to the jury the issues of contributory negligence and statutory violations by the plaintiff, erred in instructing the jury with respect to these issues, in particular with regard to the burden of proof of contributory negligence, and erred in permitting the jury to consider the emergency doctrine in determining whether the defendant was negligent.

From the testimony of the defendant and his wife, the jury could reasonably find that when the collision occurred the plaintiff was virtually motionless in the southbound travel lane of a high-speed, limited-access highway. Whether his vehicle was standing still, or moving slowly, either ahead or backward, was not a decisive factor. His conduct was findably negligent in the light of the nature of the travel upon the highway, with which he was generally familiar. Both common-law principles and statutory regulations dictate the conclusion that in the absence of breakdown or other emergency, of which there is no evidence in this case, a motorist incurs unreasonable risks if he travels upon such a highway at a speed which is materially below the permitted and normal speed of other traffic thereon. 'It may be said that negligence is conduct involving an unreasonable risk of injury to others * * * and hence it is plain that the nature and extent of its expectable consequences determine whether or not an act is negligent.' Flynn v. Gordon, 86 N.H. 198, 201, 165 A. 715, 717. 'If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do so is negligence.' Tullgren v. Amoskeag Mfg. Company, 82 N.H. 268, 276, 133 A. 4, 8, 46 A.L.R. 380. The decedent's common-law duty to maintain a lookout extended to traffic approaching from the rear, as well as to traffic moving in other directions. It is our opinion that there was evidence from which the jury could find that the decedent was negligent (Restatement (Second), Torts, s. 466), and that his conduct was findably a substantial factor in producing the harm which occurred. Maxfield v. Maxfield, 102 N.H. 101, 105, 151 A.2d 226.

The Trial Court properly considered that certain statutory provisions were applicable upon the issue of the decedent's fault, and laid them before the jury with appropriate instructions to determine whether the decedent had violated them. These provisions were little more than codification of common-law principles of negligence. One of them was RSA 263:50, which was read to the jury in the following form, which omitted certain exceptions specified by the statute: 'No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway outside of a business or residence district or compact section'.

The plaintiff maintains that there was no evidence of a violation of this provision because 'the language clearly implies something more than a mere momentary stop.' The contention is foreclosed by the decision of this court in Fontaine v. Charas, 87 N.H. 424, 181 A. 417, where the phrase 'leave standing any vehicle, whether attended or unattended,' was construed 'to make illegal any voluntary stopping of a vehicle on the highway for any length of time, long or short, except, of course, such stops as the exigencies of traffic may require.' Id., 426, 181 A. 418.

While we note that this section of the statute was amended in 1963, effective more than a month prior to the happening of this accident, (Laws 1963, 330:2, now RSA 262-A:70), the plaintiff has not relied upon this circumstance as a ground for his exception. The amended statute in effect adopts the holding of the Fontaine case, supra, by making it unlawful to 'stop' a vehicle on the traveled way, as well as to 'park or leave (it) standing' there.

The second statute which the Trial Court submitted for the consideration of the jury was that found in RSA 263:55: 'No person shall dirve a motor vehicle at such slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.' This provision of the law was likewise amended by Laws 1963, 330:2, in respects not material to this case. The pertinent provision of the amended statute (RSA 262-A:27, subd. I) remains unchanged, except for omission of the words 'or block' which were not essential to application of the statute to this case.

The plaintiff argues that the issue of whether the decedent was at fault because of violation of this statute was erroneously submitted to the jury because 'even if stopped' he 'did not impede or block any flow of traffic.' The argument is that he 'could not because there was no flow of traffic.'

This interpretation of the statute cannot be adopted. In the first place, the statute is not phrased in terms of 'flow of traffic,' which suggests the presence of a continuous stream of vehicles. The conduct prohibited by both the original and the amended version of the statute is driving 'at such slow speed as to impede the normal and reasonable movement of traffic.' RSA 262-A:57, subd. I. (Emphasis supplied.) We consider that the word 'traffic' is here used in the sense of the 'passage to and fro of vehicles along the highway' rather than in the sense of a steady or congested flow of vehicles. Similar statutes elsewhere have been interpreted not to imply a requirement that more than two vehicles be involved. See 2 Blashfield, Automobile Law and Procedure (3d ed.) s. 105.5. A contention similar to that advanced by the plaintiff was rejected in Lafferty v. Wattle (Mo.App.), 349 S.W.2d 519.

As applied to a highway of the type here involved, the statute takes on added significance, because as was observed in Angell v. Hester, 186 Kan. 43, 50, 348 P.2d 1050, 1056: 'A vehicle being operated at a subnormal speed may very well create a hazard upon a highway designed and customarily used...