Wadsworth v. Russell

• Decision Date: 08 February 1967
• Parties: Mabel E. WADSWORTH et al. v. Forrest H. RUSSELL et al.
• Court: New Hampshire Supreme Court

Page 492

226 A.2d 492

108 N.H. 1

Mabel E. WADSWORTH et al. v. Forrest H. RUSSELL et al.

Supreme Court of New Hampshire.

Argued Nov. 1, 1966.

Decided Feb. 8, 1967.

Flynn, Powell & McGuirk, Portsmouth, Raymond P. Blanchard, New Market, Russell H. McGuirk, Portsmouth, for plaintiffs.

Burns, Bryant, Hinchey & Nadeau and Robert P. Shea, Dover, for defendant Forrest H. Russell.

Sulloway, Hollis, Godfrey & Soden and Martin L. Gross, Concord, for defendant Walter Ridings.

LAMPRON, Justice.

The following findings could be made on the evidence. At about 1:00 P.M. on December 3, 1962, a clear day, the defendant Russell driving a jeep, with plaintiff Mabel as a passenger, was proceeding westerly toward Rochester on Route #202, a heavily traveled highway with a 50 mile an hour speed limit. Defendant Ridings was proceeding southerly on Salmon Falls Road, 'a country road,' with 'a stop sign governing traffic traversing southerly on the Salmon Falls Road at its intersection with Route #202.' These two vehicles collided in that intersection. A ram with a hook on the front of the Russell jeep caught in the vicinity of the left rear fender of the Ridings car swinging it around one and a half times. The jeep was tipped over on its side.

Ridings testified that as he approached the intersection he stopped at a stop sign on Salmon Falls Road located some distance North of the northerly edge of the pavement of Route #202 and again at that edge. At the latter point he looked to his left where he had an unobstructed view of 600 feet and saw no vehicle. He then looked to his right and observed nothing coming. Without looking again to his left he started across the intersection. He then heard a horn, looked to his left, saw the jeep about 24 feet away and then the crash occurred. There was evidence the Russell vehicle was travelling 25 to 30 miles per hour on Route #202.

We hold that the jury could properly find the defendant Ridings causally negligent in the operation of his automobile. He was under a duty to maintain an adequate lookout to discover the presence of motor vehicles on Route #202, such as the Russell jeep, to determine if he could safely enter the intersection. 7 Am.Jur.2d., Automobiles and Highway Traffic, s. 355, p. 901. 3 Blashfield, Automobile Law and Practice (3d ed.) s. 114.13 (1965). See Zellers v. Chase, 105 N.H. 266, 268, 197 A.2d 206.

Defendant Russell travelling on Route #202 knew he was approaching a dangerous intersection at Salmon Falls Road. He testified he could bring his jeep to a stop in a distance of 25 feet after the brakes were applied which operation he could perform automatically. It could be found that when he was about 70 feet away from the center line of Salmon Falls Road he could have seen northerly up that Road a distance of 50 feet. He testified that if at that location he had seen a car coming out of Salmon Falls Road he could have stopped before reaching the point of impact. However he testified that he was almost at the entrance to Salmon Falls Road when the 'first thing I see was the radiator of that Falcon (Ridings car) in front of me.' This was the first time he saw the Ridings car.

Russell was under duty to maintain a proper lookout for other vehicles in the vicinity of or entering this intersection and to slow down or take any other action which reasonable care required. The jury could find him causally negligent.

Argument has been advanced by Russell that plaintiff Mabel should not recover against him because she 'testified unequivocally that before the accident happened she did not have any occasion to complain to Mr. Russell about his speed or the manner in which he operated the jeep, and, in fact, even at the time of the trial, she never complained about his manner of operation of the vehicle.' Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973. None of her testimony negated the warranted conclusion from all the evidence that Russell failed to keep a proper lookout. On the contrary she testified that he was maintaining his speed of 25 to 30 miles per hour without slowing when the Ridings vehicle appeared in front of them instantly before the collision. We fail to see how the doctrine of Harlow v. Leclair, supra, can bar her recovery on the facts of this case. Griffin v. Theriault, 107 N.H. --, 223 A.2d 655.

The motions of each defendant for a nonsuit and a directed verdict in each action were properly denied.

Defendant Ridings claims that the Trial Court erred in instructing the jury that they could find him negligent for failing to stop at the stop sign. He maintains there was no evidence in the record on which the jury could have so found. Bissonnette v. Cormier, 100 N.H. 197, 122 A.2d 257. The record fails to show that this defendant brought the lack of evidence complained of to the attention of the Trial Court by a motion to withdraw the issue from consideration by the jury which is the procedure to be followed in such a case. MacDonald v. Appleyard, 94 N.H. 362, 363, 53 A.2d 434. He relies on an exception to the granting of the plaintiffs' request for the following instruction: 'It was the duty of the defendant, Walter Ridings, to stop at the stop sign and to yield the right of way to traffic on Route #202. If you find that he failed to stop or if you find he stopped but did not yield the right of way and that this caused or contributed to cause the accident, then your verdict should be for the plaintiffs.' This instruction was not given as requested. We hold that this exception did not properly raise and bring to the attention of the Trial Court the issue of lack of evidence to submit to the jury the question of Ridings' failure to stop at the stop sign. Gardner v. Commercial Mach. Company, 79 N.H. 452, 457, 111 A. 317. Terrell v. Payne, 81 N.H. 164, 167, 124 A. 462. Assuming Ridings' contention is correct it is not properly before us for correction by the exception taken.

As previously stated Route #202 on which Russell was driving was a heavily traveled highway with a speed limit of 50 miles per hour. The Salmon Falls Road on which Ridings was proceeding was 'a country road' and had a stop sign requiring traffic proceeding southerly, as he was, to stop before entering Route #202. Ridings excepted to the following instructions of the Court to the jury:

'You must bear in mind also that Route #202 is a favored highway and that the other highway is the inferior highway in relation to #202. So you will consider his (Ridings) conduct in relation to that situation. * * * A person may not, of course, enter, as a reasonably prudent man, on a superior highway when there is danger of a collision by so entering.'

There was no evidence of the existence of any ordinance or regulation which might override the usual right of way rule then governing travel at this intersection which was RSA 250:3. Cf. RSA 262-A:27-29. Consequently if Ridings was found to have complied with the requirement of the sign that he stop before entering Route #202, his conduct thereafter, as well as that of Russell, was subject to the requirements of RSA 250:3 with respect to the right of way at intersections. Beaule v. Weeks, 95 N.H. 453, 457, 66 A.2d 148. Consequently if these vehicles were arriving at the point of intersection at approximately the same instant Russell was to grant the right of way, at the point of intersection, to the vehicle approaching from his right, that is, Ridings, (Bissonnette v. Cormier, 100 N.H. 197, 199, 122 A.2d 257) unless a man of reasonable prudence in Russell's position 'would reasonably have concluded that he could pass the intersection without danger of collision.' Gendron v. Glidden, 84 N.H. 162, 168, 148 A. 461, 465.

If the Trial Court by its use of the words 'favored highway' and 'inferior highway' intended to call the attention of the jury to the following factor it was proper for that purpose. The factor being that 'while it is true that the right of way statute is general in its application, without regard to the comparative traffic upon or nature of the intersecting ways, it is well recognized by all who use our highways that drivers emerging from side roads onto heavily traveled main roads frequently consider it reasonable not to assert their statutory right of way and that those traveling the latter highways often proceed upon this assumption.' Isabelle v. Carnes, 99 N.H. 184, 187, 107 A.2d 227, 229.

However the charge is devoid of mention of any right which Ridings would have under the provisions of RSA 250:3 if he was found to have made the required stop. Furthermore the use by the Court of the word 'favored' highway in relation to Route #202 and of the word...