Shimkus v. Caesar.

• Decision Date: 07 December 1948
• Docket Number: No. 3770.,3770.
• Parties: SHIMKUS v. CAESAR.
• Court: New Hampshire Supreme Court

62 A.2d 728

SHIMKUS

v.CAESAR.

No. 3770.

Supreme Court of New Hampshire.

Dec. 7, 1948.

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

Action on the case by Frank Shimkus against John Caesar to recover for injuries sustained in a collision between plaintiff's bicycle and defendant's automobile. Verdict for plaintiff after denial of defendant's motions for nonsuit and for a directed verdict, and defendant brings exceptions.

Exceptions overruled.

Case, for negligence resulting in personal injuries to the plaintiff when the bicycle upon which he was riding and an automobile operated by the defendant collided. The accident occurred June 23, 1942, in the town of Salem at the intersection of a public highway and a private driveway leading to the Lilly house on the westerly side of said highway. The defendant with his fiancée as a passenger was proceeding southerly on the highway and the plaintiff, who was seventeen years of age, easterly down grade along the driveway. At a point in the center of the driveway 26 feet west of the center of the road, which was 19 feet wide, the visibility of a boy of the approximate height of the plaintiff on a bicycle was good as far as a point in the highway 206 feet north from the center of the driveway. The boy would be just outside the fence along the front of the Lilly property; and the heavier foliage and trees along the northerly boundary ended about 18 feet from the west edge of the highway. Between the road and this row of trees was an area of low foliage, 2.5 feet high. The height of the bicycle rider above the ground was estimated to be five feet.

Trial by jury with a view, and verdict for the plaintiff. The only exceptions argued are those taken to the denial of the motions for a nonsuit and for a directed verdict. These were reserved and transferred by Lampron, J. Robert W. Upton, John H. Sanders, and Frederic K. Upton, all of Concord, for plaintiff.

Alvin A. Lucier, of Nashua, for defendant.

JOHNSTON, Justice.

Neither party had a statutory right of way or one in the same sense that a locomotive engineer has it; each owed to the other the reciprocal duty to act reasonably. Tetreault v. Gould, 83 N.H. 99, 138 A. 544.

In passing upon the motions for a nonsuit and for a directed verdict, the Court was obliged to consider the evidence for the plaintiff as true and to construe all the evidence most favorably to the plaintiff. Carney v. Concord St. Railway, 72 N.H. 364, 369, 57 A. 218.

The defendant argues that since it was physically possible for the plaintiff to see the defendant and his automobile as quickly as the defendant could see him, contributory negligence must bar any recovery based upon negligence of the defendant. The issues of fault on the part of each operator cannot be so simply decided as by considering only the physical possibility of vision that each had of the other. That is only one factor. Whether each exercised reasonable care must be determined in the discretion of the jury by all the circumstances under which each respectively acted.

There was evidence from which it could have been found that the defendant was not reasonably attentive. The plaintiff testified that he went down the southerly side of the drive at about five miles per hour, using his coaster brake to control his speed. It took him approximately four seconds to travel the last 30 feet to the point of the collision when his bicycle was only two or three feet from the east edge of the tar. During this time or at least so much of it as the defendant going at a speed of 35-40 miles per hour used in traveling from the point 206 feet northerly, the plaintiff was visible to the defendant. Although the defendant did not see the bicycle until it was about ten feet from him, it could be found that he was at fault for...