Opinion
No. 4937.
Argued September 6, 1961.
Decided December 29, 1961.
1. In an action by a pedestrian for injuries sustained when struck by defendant's motor vehicle while crossing a highway a verdict for the plaintiff was properly set aside where the plaintiff's contributory negligence was conclusively established by his failure to see defendant's approaching motor vehicle under the circumstances at any time prior to being struck.
2. In a pedestrian-motor vehicle negligence action the plaintiff was not entitled to have the jury instructed on the last clear chance doctrine where the evidence established that the defendant was not aware of the plaintiff's presence in the highway until just prior to being struck and at that time there was opportunity only for instinctive action.
Case for negligence to recover for personal injuries sustained by the plaintiff, a pedestrian, when struck by an automobile operated by the defendant on December 16, 1957 at about 5:00 P.M. two to three feet from the northerly edge of the traveled way of Amoskeag Street in Manchester.
Amoskeag Street runs westerly across the Merrimack River on Amoskeag Bridge to the interchange on the turnpike. The bridge is of metal beam superstructure, approximately 740 feet long and lighted with electric lamps with a sidewalk on the southerly side. The highway is 25 feet wide with two traffic lanes and the sidewalk continues along the southerly side of the street.
Immediately prior to the accident, the plaintiff had proceeded westerly across the bridge on his way home from work. It was dark or "toward dusk." Motor vehicle lights were on as were those on the bridge. When the plaintiff was at a point about 100 feet from the west end of the bridge, he prepared to cross the highway at right angles. He paused to let traffic proceeding easterly toward the bridge pass. He stepped into the highway and looked easterly and westerly and seeing no traffic proceeded to cross. As he crossed, he continued to look to his right (easterly) and seeing no oncoming vehicles proceeded to a point two to three feet from the northerly edge of the highway where he was struck on the right buttock by the right front headlight of the defendant's automobile. Trial by a jury following a view resulted in a verdict for the plaintiff. At the close of the plaintiff's evidence, the Court denied the motion for a nonsuit. After the verdict, the defendant moved to have the verdict set aside and judgment entered for the defendant notwithstanding the verdict on the grounds that the verdict was against the law and the evidence and that the jury was moved by passion and prejudice and fell into a plain mistake. The Court made the following order on this motion:
"Nov. 15, 1960 Motion for nonsuit reconsidered and granted. Verdict set aside as being against the evidence and the weight of the evidence. Plaintiff excepts."
During the trial, both parties took certain exceptions to the rulings of the Court admitting or excluding evidence and to the failure of the Court to instruct the jury as requested. These exceptions were reserved and transferred by Grimes, J. Other material facts appear in the opinion.
Sheehan, Phinney, Bass, Green Bergevin and Joseph F. Devan (Mr. Devan orally), for the plaintiff.
Booth, Wadleigh, Langdell, Starr Peters and Robert F. McGinnis (Mr. McGinnis orally), for the defendant.
The principal contention of the defendant is that the plaintiff was guilty of contributory negligence and that his own testimony bars recovery.
The plaintiff was 66 years of age and had been crossing the street in the same general area for thirty years. His hearing and eyesight were good. He was aware that around 5:00 o'clock the traffic was heavy.
On the day of the accident, following his usual custom, he stopped on the sidewalk before stepping out into the street. He waited until some traffic proceeding easterly on the bridge had passed and testified "When I started to cross, I could not see any cars in either direction" and "I looked at the bridge. I look everywhere." He saw cars further down the bridge ". . . but close to me, no."
After getting out into the road about four feet, he testified, he could see easterly to a point about one-quarter of the way across the bridge and he looked "carefully" to his left and to his right and saw no cars. He continued across the middle of the road and looked "carefully" again but failed to see any approaching lights. At no time did he observe a car approaching closely while crossing the street. The plaintiff wore a dark coat and brown hat.
The defendant was proceeding across the bridge at 25 miles per hour. Her lights were on low beam. It had been raining that day and the road was wet. There were no vehicles approaching easterly within 500 feet. Her first knowledge of the plaintiff's presence was when she saw his face turned in her direction. She immediately applied the brakes and stopped. The left rear tire left a mark on the pavement 25 feet long.
Taking the evidence most favorable to the plaintiff we think it admits of only one conclusion, that if he had looked "carefully" as he said he did on at least three occasions before and while crossing the street, a "careful" look would have disclosed the presence of the defendant's approaching motor vehicle. His due care is not to be judged on the basis of what he claimed he did not see but in the light of what the ordinary man of average prudence in the position of the plaintiff ought reasonably to have observed. Niemi v. Railroad, 87 N.H. 1, 3; Lafountaine v. Moore, 90 N.H. 258; L'Heureux v. Desmarais, 89 N.H. 237, 238; Davis v. Lord, 95 N.H. 237.
There is a distinction between the facts in the case at bar and that group of cases in which the plaintiff "looked and saw" but made a mistake in judgment and failed to properly appraise the situation. MacKelvie v. Rice, 92 N.H. 465, and cases cited.
The failure of Bukowski to see an approaching motor vehicle at any time before he was struck makes his conduct careless and constitutes contributory negligence.
The plaintiff excepted to the refusal of the Court to instruct the jury on the last clear chance doctrine. We think the evidence clearly demonstrates that the defendant was not aware of the plaintiff's presence until he was directly in front of her, and at that point there was opportunity only for instinctive action. Clark v. Railroad, 87 N.H. 36, 38. The plaintiff's requests were properly denied.
Exceptions overruled.
DUNCAN, J., dissented being of the opinion that judgment should be entered on the verdict; the others concurred.