Opinion
No. 3975.
March 6, 1951.
Certain evidence justified the finding that the defendant in leaving his unlighted truck upon the traveled portion of the highway violated the parking statute (R. L., c. 119, s. 26) and that such violation was causal of the accident. The finding that the vehicle left upon a traveled highway was a truck within the meaning of R. L., c. 115, s. 1, XV was justified where a view which the Court took may have furnished a vital part of the evidence. The plaintiff's contributory negligence was not established as a matter of law in colliding with an unlighted truck parked in the darkness upon the traveled portion of a highway where he exercised some care for his own safety and was distracted by the lights of oncoming cars.
CASE, to recover for personal injuries and property damage arising from an automobile collision on a public highway in Somersworth on November 15, 1946. Trial by the Court after a view resulting in a verdict for the plaintiff. The defendant excepted to the admission and exclusion of evidence, to the findings and rulings made, to the denial of his requests for findings and rulings, to the denial of his motions for a nonsuit and directed verdict, to the verdict for the plaintiff, and to the denial of his motion to set aside the verdict.
Around noon on the day of the accident the defendant, whose farm was located a few hundred feet from the scene, tried unsuccessfully to start his Chevrolet dump truck. He and a neighbor pushed the truck southerly on the highway down an incline in an effort to start it. It would not start and the defendant left it on the road with the right wheels on the right hand dirt shoulder and about two thirds of the truck including the left wheels on the traveled way. The defendant made two calls to a mechanic named Dussault between 12:30 P. M. and 4:00 P. M. to come and fix the truck. Dussault was supposed to fix the truck but was not told to move it and he had it ready to run by quarter to five. The defendant who planned to move it temporarily forgot about it and went on with his chores until notified by the police about six o'clock of the accident, which had happened shortly past five o'clock and some three quarters of an hour after sunset. The road at the scene was straight for several hundred feet in both directions and a street light was located seventy-five feet away but it was out at the time. There were no lights on the truck, the rear end of which was painted black, no flares were placed and there was evidence that the reflectors were rusty and dirty.
At the time of the accident it was dark and the plaintiff had his head lights on low beam as two cars were approaching him from the opposite direction. He was traveling about thirty miles an hour and did not see the truck until he was some thirty feet from it at which time he claimed the nearer of the approaching cars was about thirty to forty feet away. He testified he immediately put on his brakes but was unable to avoid colliding with the rear end of the truck.
Transferred by Wheeler, J. Further facts appear in the opinion.
Hughes Burns and Robert E. Hinchey (Mr. Hinchey orally), for the plaintiff.
Charles F. Hartnett for the defendant.
We believe the evidence warranted the verdict and the defendant's motions for a nonsuit and directed verdict were properly denied. Aside from statutory provisions, hereinafter discussed, the defendant's negligence in leaving his unlighted truck with the rear end painted black without flares, with its reflectors findably dirty and rusty and with two-thirds of it on the main traveled highway is plain. Not only was there evidence from which the Court could have found it practicable to have moved the truck before a quarter of five, since the defendant lived nearby and had means to do so, but at anytime after that hour it is undisputed that he could have driven it off. Had he done so there would have been no accident. It therefore appears the Court correctly ruled that in leaving the vehicle parked as he did he violated R. L., c. 119, s. 26, known as the parking statute and that this violation was causal. Sanders v. Welch Company, 92 N.H. 74. The finding of causal fault for failing to place flares as required by R. L., c. 119, s. 28, was also warranted. MacDonald v. Appleyard, 94 N.H. 362; Sanders v. Welch Company, supra.
The defendant's argument that there was no evidence to warrant finding that the motor vehicle was a truck within the meaning of R. L., c. 115, s. 1, par XV, cannot prevail. The Court took a view which "may have furnished a vital part of the evidence." Tetreault v. Gould, 83 N.H. 99, 102.
The defendant claims however that the plaintiff was guilty of contributory negligence as a matter of law and in so doing seeks to hold him to various estimates of distances. It is well established that such estimates need not be accepted. O'Brien v. Company, 95 N.H. 79, 81. The plaintiff did not drive recklessly into a wholly blind situation as was the case in the authorities cited by the defendant. Here the Court found the plaintiff was momentarily distracted by the lights of oncoming cars, which is a common occurrence. Putnam v. Bowman, 89 N.H. 200, 205. Furthermore it is well known that it is difficult even in the exercise of due care to see black objects in the road at night. There was testimony that he was driving reasonably and that he acted as soon as he became aware of the danger. There being evidence under all the circumstances that he exercised some care the finding by the Court that the plaintiff was not contributorily negligent is warranted. Dennis v. Railroad, 94 N.H. 164, 165.
An examination of the defendant's exceptions to testimony discloses none sustainable. Many were in connection with the admission of opinion evidence and the record disclosing no abuse of the Court's discretion these are overruled. Sanders v. Welch Company, 92 N.H. 74, 81.
We come lastly to the exceptions to the Court's denial of certain requests for findings. Some of the findings requested are immaterial or inconsistent with the findings and rulings made and others are not required. Numbers 8, 9 and 10 are in substance that Mr. Dessault was a competent mechanic and the defendant was entitled to rely on him to move the truck to a safe place. The effect of the defendant's testimony being that he did not rely on Dussault to remove the truck it is plain that such findings could not be made. Bartis v. Warrington, 91 N.H. 415, 417, 418. Various other requested rulings inconsistent with the general conclusions of the Court were properly denied. Chabot v. Shiner, 95 N.H. 252. Others requiring the plaintiff as a matter of law to anticipate the defendant's negligence obviously should not have been granted. Holt v. Grimard, 94 N.H. 255. The exceptions relating to damages appear without merit for in view of the losses and injury the plaintiff sustained the verdict of $1,000 was well within reason. It follows the order is
Judgment on the verdict.
All concurred.