Walsh v. Pub. Serv. Co. Of N.H.. Same

• Decision Date: 02 February 1943
• Citation: 30 A.2d 494
• Parties: WALSH v. PUBLIC SERVICE CO. OF NEW HAMPSHIRE. SAME v. YAROMA.
• Court: New Hampshire Supreme Court

30 A.2d 494

WALSH

v.PUBLIC SERVICE CO. OF NEW HAMPSHIRE.

SAME

v.YAROMA.

Supreme Court of New Hampshire.

Feb. 2, 1943.

Transferred from Superior Court, Hillsborough County; Lorimer, Judge.

Actions by Helen Walsh against the Public Service Company of New Hampshire and against Alexander Yaroma for injuries allegedly sustained when plaintiff struck her head on street car just after alighting from the car as defendant Yaroma's automobile was approaching. The causes were tried together by jury and plaintiff excepted to certain rulings. Verdicts were for the defendants. Cases transferred to Supreme Court.

Judgments for defendants.

Two actions of the case, for negligence. The plaintiff seeks to recover for injuries alleged to have been suffered on May 25, 1940, just after alighting from a street car of the defendant Company, as the defendant Yaroma's automobile was approaching. The cases were tried together by jury. Verdict for each defendant. The plaintiff excepted to the admission and exclusion of evidence, to portions of the arguments for both defendants, to failure to grant certain requests for instructions, to certain instructions given, and to the denial of the plaintiff's motions to set the verdicts aside as contrary to the law and the evidence. Transferred by Lorimer, J. The facts necessary to a decision appear in the opinion.

McLane, Davis & Carleton, William G. McCarthy, and Robert P. Bingham, all of Manchester, for plaintiff.

Warren, Wilson, McLaughlin & Wiggin, of Manchester (J. Walker Wiggin, of Manchester, orally), for defendant Company.

Sewall, Varney & Hartnett, of Portsmouth (Chas. F. Hartnett, of Portsmouth, orally), for defendant Yaroma.

PAGE, Justice.

The plaintiff, a passenger on the defendant Company's northbound street car, signalled for a stop at Elm and Concord Streets in Manchester. The motorman stopped the car and opened the door some distance south of the intersection of the streets. The distance was in dispute. The motorman claimed that an automobile standing ahead of him compelled the stop at that place, but the plaintiff claimed that it was an improper and unsafe place to discharge passengers.

The plaintiff alighted and took two or three steps forward easterly in the direction of the sidewalk. She then saw the defendant Yaroma's automobile, northbound and nearly upon her. In fright she drew back hurriedly, and, as she testified, bumped her head on the street car, suffering the injuries complained of. As to when and how many times, if at all, she looked for approaching automobiles prior to the moment of fright, she alone testified, and in a confused and self-contradictory manner. While it is possible that she could not be found contributorily negligent as a matter of law, her testimony discloses the amplest evidence upon which she could be found causally negligent as a matter of fact. Her counsel have wisely waived the exception to the denial of their motions to set the verdict aside, but seek a new trial on the grounds of other alleged errors.

The plaintiff excepted to an instruction to the jury that there was “no issue in this case of any unreasonable or excessive speed on the part of Mr. Yaroma.” The plaintiff's opening made no claim of excessive speed, and no such claim was made until late in the final argument of her counsel. Even then the claim was a limited one; the speed was said to be slightly excessive only as bearing on the failure of Yaroma to swerve to his right, or on his failure to bring his automobile to a full stop until he was within two or three feet of the plaintiff, frightening her and causing her to draw back and bump her head. The issue as to the nearness of Yaroma's approach to the plaintiff was submitted to the jury by the court, after it had been extensively tried and argued. It is hardly probable that the jury were misled.

But whether or not this is so, there was no evidence of excessive speed. Four claims of such speed were briefed. All have been examined with care. Each contains elements of conjecture that renders it valueless. (1) The motorman heard Yaroma's car make a sound like one at excessive speed, but had no idea what the speed was and no judgment about it. The only evidence to take the matter out of conjecture was Yaroma's testimony that, after stopping in the rear of the street car, he started up again and was driving in low gear. (2) Yaroma's failure to swerve to the right is argued as proof of excessive speed. This is purely speculative, as the failure might have been due to any of several causes unless all but one is eliminated, or there is independent evidence of the one. (3) The plaintiff makes a computation of elapsed time, but it is based upon a supposition of the plaintiff's own speed, of which there is no evidence. (4) It is a findable fact that Yaroma did not bring his car to a stop until he reached the intersection of the streets. The claim that he was therefore going at an excessive speed is conjectural. A stop at any given point is perfectly consistent with a slow speed unless there is proof of brake marks or other independent evidence here lacking. Moreover, the only claim the plaintiff's counsel ever made to the jury regarding speed was that if Yaroma had not been driving quite so fast (“a little more slowly”) he would have stopped before he came within two or three feet of the plaintiff.

There was no error in taking the issue of speed from the jury.

The plaintiff excepted to the denial of her request that the court charge that Yaroma had the duty of stopping in accordance with the provisions of a supposed ordinance of the City of Manchester which it is alleged requires a driver approaching a street railway car, when passengers are alighting or embarking, to come to a full stop before reaching the door of the street car. The court charged instead in accordance with P.L., c. 103, § 12, that in such cases the driver had the duty to slow his vehicle, and, if necessary for the safety of the public, to bring it to a full stop.

It does not appear that the supposed ordinance was proved or offered for proof. The fact of the claimed law is wholly an evidentiary matter. Whether it exists is the first question. If that is answered in the affirmative, the second question arises of its construction, and that is a question of law. Both questions are for the court, but if the first question of fact is not found, the second question cannot arise. While the court may in discretion search the law books for the answer to the question of the fact of foreign law, that method is not compulsory, but only alternative to proof offered by the party. Saloshin v. Houle, 85 N.H. 126, 155 A. 47.

The proposition that c...