Opinion
No. 4474.
Argued April 4, 1956.
Decided April 27, 1956.
Disbelief of testimony concerning certain facts does not furnish affirmative proof of contrary facts.
In the absence of evidence of an ordinance or regulation controlling the manner of stopping at a stop sign posted at an intersecting way or conduct after having stopped thereat, the operator's conduct is to be governed by the intersecting way statute (RSA 250:3) and the standard of reasonable care.
THREE ACTIONS OF CASE, to recover damages for personal injuries and property damage from an intersectional accident in the city of Manchester involving the plaintiff's truck and the defendant's truck. Trial by jury resulted in verdicts for all defendants. The plaintiffs' exceptions to the Court's instructions to the jury were reserved and transferred by Grimes, J.
The plaintiff McGuigan was operating a truck owned by the plaintiff Bissonnette in a southwesterly direction on Goffs Falls Road while the defendant Messier was operating a Dodge truck owned by the defendant Cormier in a southeasterly direction on Brown Avenue Extension. The accident occurred at the intersection of Goffs Falls Road and Brown Avenue Extension, near the entrance to Pine Island Park. For convenience the two plaintiffs will be designated as plaintiff and the two defendants as defendant, the legal rights of the parties being identical on this appeal. At the intersection there was a stop sign on each side of Brown Avenue Extension facing the defendant as he approached Goffs Falls Road. From the stop sign to west edge of the Goffs Falls Road, a distance forty feet, neither party could see the other because it was a blind corner obscured by bushes. The defendant testified he stopped at the stop sign, continued to look to his left as he approached the west edge of Goffs Falls Road, applied his brakes leaving brake marks 7 to 9 feet long in the loose sand, turned to his right when he saw the plaintiff coming and came to a final stop in a southerly direction with his truck extending 6 inches into Goffs Falls Road.
The plaintiff testified that the defendant "shot out in front" of him and that the plaintiff swerved to his left to avoid a collision and this caused his truck to overturn on the east side of the road after striking a pillar at the entrance of Pine Island Park. At no time did the two trucks come into contact with each other. The plaintiff's truck was loaded with eight tons of gravel and the main leaf of the right rear spring was broken and rusted before the accident. The brake marks made by the plaintiff's truck were: right rear, 86 feet; left rear, 36 feet; right front, 32 feet; left front, 63 feet. Other facts appear in the opinion.
Craig Craig (Mr. William H. Craig, Jr. orally), for the plaintiff.
Devine Millimet (Mr. Millimet orally), for the defendant Messier.
The Court instructed the jury that there was no evidence that the defendant did not stop at the stop sign. The only direct testimony in the record was that the defendant did stop at the stop sign. The plaintiff claims that there is other evidence from which it could be found that he did not stop because the defendant's truck was "in third speed" and because of the plaintiff's testimony that "there is nothing in the road one second and the next second this guy is right in front of the road." See Abbott v. Hayes, 92 N.H. 126, 128. No evidence was introduced to explain the significance of third speed in the defendant's truck and neither that fact nor the plaintiff's testimony warranted a finding that no stop was made at the stop sign. It is entirely consistent with the evidence viewing it most favorably to the plaintiff (French v. York, 99 N.H. 90) that the negligence of the defendant occurred, if at all, after the stop was made at the stop sign. This matter was adequately taken care of by the Court in its instructions. While the jury were entitled to disbelieve the defendant's testimony even though it was uncontradicted, the disbelief was not affirmative proof in favor of the plaintiff. Clairmont v. Cilley, 85 N.H. 1, 7. "Disbelief in testimony concerning particular facts does not convert that testimony into affirmative proof of contrary facts." Coleman v. Stacy, 91 N.H. 60, 62. Stuart v. Kelley Son, 331 Mass. 76. The plaintiff produced no evidence that the defendant failed to stop at the stop sign and the Court's instruction was therefore proper.
The Court instructed the jury that they were to decide if the defendant was negligent in the manner in which he operated his truck at the intersection after stopping at the stop sign. This did not eliminate the stop sign as a circumstance for the jury to consider. The jury was still called upon to determine whether the defendant was negligent after he had left the stop sign. Legere v. Buinicky, 93 N.H. 71. It was agreed at pre-trial that the stop sign was legally erected but there was no agreement that there was any ordinance or regulation in the city of Manchester which governed the conduct of the parties at the stop sign. See Beaule v. Weeks, 95 N.H. 453, 456. In the absence of any evidence of an ordinance or regulation (Walsh v. Public Service Co., 92 N.H. 331; State v. Duranleau, 99 N.H. 30) controlling the manner of stopping at the stop sign and conduct after the stop sign had been observed, the defendant's conduct was governed by the standard of reasonable care and the intersection statute. RSA 250:3; Legere v. Buinicky, 93 N.H. 71; Gendron v. Glidden, 84 N.H. 162. The Court was not obliged to lay down a mathematical formula to determine where the defendant was required to stop as he approached the west edge of the Goffs Falls Road. French v. York, supra.
Judgment on the verdicts.
All concurred.