Reed v. Nashua Buick Co.

• Decision Date: 05 November 1929
• Parties: REED v. NASHUA BUICK CO.
• Court: New Hampshire Supreme Court

147 A. 898

REED

v. NASHUA BUICK CO.

Supreme Court of New Hampshire. Hillsborough.

Nov. 5, 1929.

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

Action by William E. Reed against the Nashua Buick Company. Verdict for plaintiff. On exceptions. Judgment on the verdict.

Case, for injuries received by the plaintiff in a head-on collision of the parties' automobiles upon Prospect street in Nashua. Trial by jury and verdict for the plaintiff.

The Memorial Hospital is situated upon the north side of said street, and has its only public entrance thereon. The street runs east and west. The collision occurred in front of the hospital, and about 35 feet west of the intersection of said street with Dearborn street, which crosses it at right angles. The plaintiff, a physician, was accustomed to make daily visits at the hospital, and usually approached by said street from the west. On his arrival, the morning of the accident, the street was clear of vehicles. Coming easterly on Prospect street, he parked his car, as was his custom, at the north curb, just east of the hospital entrance, facing east. There was a "no parking" sign on the south or opposite side of the street. While he was calling on his patients, two other cars arriving from the east parked in front of his car, both facing west, while a third, approaching from the west, disregarding the sign, parked upon the south side of the street.

Upon the departure of the plaintiff, his chauffeur backed his car, so as to clear the car immediately in front, and swung to the right, passing southeasterly and diagonally toward the southerly side of the street. When he had proceeded about 20 feet he was in collision with the defendant's car, which had come north on Dearborn street and turned westerly upon Prospect. Between curbs Prospect street is 38 feet wide, a line showing a division in the asphalt being 19 1/2 feet southerly of the northerly curbing. The evidence was conflicting whether the position of the cars at the time of the impact was north or south of this line.

The plaintiff's evidence tended to show that his car was in low gear and that he was proceeding slowly, riot to exceed 4 miles per hour: that when his car "had got straight ahead on the south side of Prospect street" he saw the defendant's car going north on Dearborn street at a speed of 25 miles per hour, and that he supposed it would continue the same course; that, instead, it swung westerly onto Prospect street and increased its speed; that the plaintiffs driver thereupon swung his car quickly to the right and came to a stop close behind the car parked upon his right, which intercepted his further progress; that his left front wheel and mud guard was struck by the corresponding wheel and guard of the defendant's car; that there was room for the defendant's automobile to have passed between the plaintiff's car and the cars parked at the northerly curb, and that another car so passed while the cars remained in collision.

The defendant's evidence tended to show that its car came into Prospect from Dearborn street northeasterly of the center of the intersection, and that the collision occurred at a point north of the division line in the asphalt; that its driver slowed down to 15 miles per hour as he entered the intersection and increased to twenty while making the turn; that as he came to a "straightaway course" on Prospect street he first saw the plaintiff's car passing diagonally across his path, 7 or 8 feet ahead of him; that he immediately threw his clutch, engaged his brake, and turned slightly to his right—the momentum of his car forcing it into collision with the plaintiff's; that the plaintiff's car was wholly north of the division line, and that there was not room to pass between the plaintiffs and the other cars parked to his right.

Other facts appear in the opinion. Exceptions taken to the denial of the defendant's motion for a directed verdict, to the admission of evidence, and to a refusal to set aside the verdict for error in argument were allowed.

John W. Perkins and William H. Sleeper, both of Exeter, for plaintiff.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

SNOW, J. Exceptions were taken to the admission of evidence of the absence of other approaches to the hospital and the presence of a "no parking" sign upon the south side of Prospect street; to proof of the custom of the plaintiff and other doctors to park on the north side of said street at particular stands and irrespective of direction; and to evidence that such custom suited their convenience and promoted the prompt performance of their professional duties. It is the position of the defendant in argument that this evidence was inadmissible, because the facts sought to be proved were not shown to have been known to the defendant. The question presented by these exceptions call for an examination of the real or ostensible issues to which the evidence in question was addressed, and more particularly whether the contributory negligence of the plaintiff in the manner he parked his car was a defense, or was so regarded at the trial.

Travelers upon a public highway may make any use thereof, not in conflict with the rules of the road, which is reasonably incident to highway travel. Lydston v. Company, 75 N. H. 23, 24, 70 A. 385, 21 Ann. Cas. 1236; Langevin v. Company, 81 N. H. 446, 447, 128 A. 681; Ahem v. Concord, 82 N. H. 246, 132 A. 570. Parking is a recognized and common use of highways. No statutory or common-law rule of the road has been suggested in argument which forbade the plaintiff to park his car in the manner he did. Neither the rules requiring the driver of a vehicle to seasonably turn to the right of the center of the traveled part of the road when meeting another traveler (Pub. Laws 1926, c. 90, § 1), or when he is informed that another desires to pass him (Id. § 2), nor the rule requiring him to yield the right of way at...