Sweeney v. Willette
| Decision Date | 01 April 1952 |
| Citation | 87 A.2d 858,97 N.H. 330 |
| Parties | SWEENEY v. WILLETTE et al. |
| Court | New Hampshire Supreme Court |
Frederick K. Upton and Robert W. Upton, Concord (Robert W. Upton, Concord, orally), for plaintiff.
Hinkley & Hinkley, Lancaster, and J. L. Blais, Berlin (Walter D. Hinkley, Lancaster, orally), for defendant, Alfred Willette.
The defendant, Dominic Poretta, filed no brief.
The plaintiff's claims of negligence in broad outline are these: first, that the clearance lights on the truck were not lighted, and second, that the truck came onto the plaintiff's side of the road. The defendant denies both of these contentions and says further that there is no evidence upon which to base findings that the clearance lights were unlighted, or that the failure to light them, if any, was causal, or that the accident happened on the plaintiff's side of the road.
In regard to the clearance lights, one witness testified unequivocally that a short time before the accident he saw the truck parked by the Country Club in Gorham with its headlights on but its clearance lights unlighted. In spite of contradictory testimony and his own prior conflicting signed statement, it is axiomatic that the jury could believe this witness' account at the trial if they so chose. See Kimball v. Dwyer, 97 N.H. ----, 86 A.2d 113, 114 and cases cited. The plaintiff testified positively that as the truck approached her at the scene of the accident, the clearance lights were not lighted. She was in a position to see and she has left no doubt as to what her observations were. Another witness said that almost immediately after the accident, the headlights were lighted but the clearance lights were unlighted. No sufficient reason appears why the jury could not believe this testimony in preference to the contradictory evidence produced by the defendant. The jury could also believe, in view of all the circumstances including the fact that the defendant claimed he got out of the truck at the Country Club in Gorham and observed the lighting, that he was negligent in not noticing then that the clearance lights were out.
It further appears the failure to have them lighted might be found causal. The headlights were not a substitute for the clearance lights. Cf. Putnam v. Bowman, 89 N.H. 200, 203, 195 A. 865. Experience has proved that in addition to headlights, clearance lights are necessary to provide an extra means of alerting an operator and our legislature has recognized this. R.L. v. 119, § 9. The jury might reasonably believe that the driver allowing enough room to pass what he thought to be an ordinary automobile might have then been unable to avoid the disaster on being suddenly confronted with a 'towering, dark mass in back of two headlights,' as one witness described this truck. Cf. Dennis v. Boston & M. Railroad, 94 N.H. 164, 167, 49 A.2d 164. Under all the circumstances, it seems reasonable men could believe the failure to have the clearance lights on was causal, and therefore this question is for the jury. See Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; McGuiggan v. Hiller Bros., 209 Wis. 402, 245 N.W. 97.
This brings us to the plaintiff's second claim that the accident happened on her side of the road. She testified that as they approached the scene of the accident, 'My brother was driving on his own side of the road * * * about three feet from the right shoulder,' and that she knew this to be so because 'I watched the side of the road and saw where the lights were hitting on the sand and shoulder.' She added that just before the collision her brother was driving 'on his own side of the road.' At the moment of the crash, she 'felt the car being dragged.' It is claimed that at that instant the truck swung back on its own side of the road, pulling the car toward its left, or easterly side of the road. This testimony findably supports this claim as does the defendant's statement that he pulled to his right to avoid the accident. There was evidence of headlight glass and slabwood on the plaintiff's own west side of the road. The fact that this was not observed until around 8 o'clock the next morning, while going to the weight of the evidence, does not make it valueless as a matter of law. Some of the occupants of the defendant's truck said the slabwood fell off only on the right or easterly side of the truck and one heard it hitting the blacktop. The defendant admits slabwood was thrown off by the impact. There was evidence that there was 'loads of blood' in the center of the road. Also, starting about in the center and four to six feet north of where the headlight glass was scattered, was a 'fresh scar' which curved northeasterly. It looked as...
To continue reading
Request your trial
-
Sweeney v. Willette
...of the left side of the truck would be over the center line of the highway even though the tire marks were not. Sweeney v. Willette, 97 N.H. 330, 333, 334, 87 A.2d 858; Abbott v. Hayes, 92 N.H. 126, 26 A.2d The charge to the jury included a brief summary of claimsof each party. In the summa......
-
Couture v. Woodworth
...the issue of defendant's negligence presented questions of fact for the jury under the rules laid down in the case of Sweeney v. Willette, 1952, 97 N.H. ----, 87 A.2d 858. See anno. 21 A.L.R.2d It is urged that the evidence establishes that the driver of the plaintiff's car was negligent as......
-
Wentworth Bus Lines v. Sanborn
...424, 426, 181 A. 417; Rouleau v. Blotner, 84 N.H. 539, 152 A. 916; Bellemere v. Ford, 94 N.H. 38, 42, 45 A.2d 882; cf. Sweeney v. Willette, 97 N.H. 330, 332, 87 A.2d 858. There was ample evidence to support the Trial Court's finding that the negligence of the defendant was the sole cause of......