Opinion
February 29, 1956.
The case was submitted on briefs.
Francis D. Mone, for the defendant.
William A. Torphy, for the plaintiff.
Exceptions overruled. The defendant excepted to the denial of his motion for a directed verdict predicated solely on the contention that the plaintiff was contributorily negligent as matter of law. There was no error. The facts, taking the evidence as favorably for the plaintiff as reasonably may be, are as follows: The plaintiff, operating an automobile on the Fall River-Providence highway on February 10, 1950, at about 5:30 P.M. was proceeding in the direction of Providence in the right hand lane (lane 1) at a speed of thirty to thirty-five miles per hour following traffic ahead of him the nearest automobile of which was some fifty feet in front of him. The plaintiff's lights were lighted and were on low beam "because there was a stream of traffic both ways." The defendant's intestate proceeding in the opposite direction in an unlighted automobile turned across the highway in the path of the plaintiff's automobile in order to enter a driveway. The plaintiff did not see the automobile of the defendant's intestate until he was eight to ten feet away from it; it was very slightly, not entirely, in the lane in which the plaintiff was operating. The plaintiff was familiar with this highway; the weather was clear, the road dry, and in the direction in which he was proceeding the highway was straight and level for approximately one thousand feet up to the scene of the accident and for seventy-five feet beyond. "[T]here was nothing on that highway that night to interfere with his view of any objects in front of him." Failure to see the unlighted automobile of the defendant's intestate before the plaintiff did in fact see it does not establish negligence as matter of law. The plaintiff was entitled to rely to some extent on the assumption that automobiles would not turn from the other side of the highway into the path of approaching vehicles. The question of the plaintiff's negligence was for the jury.