Opinion
Decided June 28, 1934.
On a motion for a nonsuit certain evidence of the plaintiff explaining why he did not sooner apply his brakes was insufficient to conclusively establish that he insisted upon his supposed right of way with notice of an impending accident. On a motion to set aside a verdict the evidence was ineffective to establish its excessiveness as a matter of law.
TWO ACTIONS ON THE CASE, for negligence to recover for personal injuries and property damage resulting from a collision between two automobiles, one driven by the defendant and the other by the plaintiff Talbert upon September 16, 1931. Trial by jury with verdicts for the plaintiffs. The defendant excepted to the denial of her motions for nonsuits and directed verdicts, and to the denial of her motion to set aside the verdicts upon the ground inter alia that they were both excessive. A bill of exceptions was allowed by Scammon, J.
The accident happened at a point in Londonderry known as Barrett's Corner, where the Londonderry road, so-called, intersects the Derry-Nashua road. The Londonderry road here splits into two branches, the right hand branch turning in an easterly direction toward Nashua and the left in a westerly direction toward Derry. The two branches of the Londonderry road thus form the sides of a triangle, across the base of which runs the Derry-Nashua road. The plaintiffs' evidence tended to prove that they were traveling east on the Derry-Nashua road, and after they had passed the point of intersection with the left branch of the Londonderry road the defendant's car came across the triangular area of the intersection and ran into the right side of the plaintiffs' car, tipping it over and causing the injuries complained of. The explanation of the accident given by the defendant immediately after it occurred was that "she was looking for the detour sign." "She said she didn't see them; that she was looking round at the sign."
Sewall Waldron and Frederick J. Grady, for the plaintiffs.
O'Connor Saidel (Mr. Saidel orally), for the defendant.
The defendant does not deny that there was evidence of her fault, but argues that the evidence conclusively demonstrates the fault of the plaintiff Talbert and that his negligence "was the efficient, sole and proximate cause of the accident." The argument is that the testimony of the plaintiff Talbert demonstrates that he negligently insisted on his supposed right of way and failed to apply his brakes after the likelihood of a collision became evident to him. It is sufficient to say that the testimony does not sustain this contention. The only evidence upon this point referred to by the defendant was the answer of the plaintiff Talbert to the inquiry, why he did not put on his brake when he first saw the defendant coming down the Londonderry road about 100 feet away, as follows: "A. Well, I didn't have to; I was by the intersection." This statement is wholly inadequate as a basis for the assertion that he insisted upon his supposed right of way in the face of impending disaster.
No tangible reason has been suggested for the defendant's contention that the verdict in the case of the plaintiff Talbert was, as a matter of law, excessive. In the case of the plaintiff Annie, the defendant contends that the verdict of $4,191 was excessive because the evidence did not justify a finding that she suffered a hernia as a result of the accident. A sufficient answer to this contention is found in the testimony of the physician who attended her, who gave it as his opinion that she was suffering from hernia and that the accident caused it. The force of this testimony was not destroyed, as a matter of law, by that of the defendant's experts, who gave contrary opinions.
Judgments on the verdicts.