Opinion
No. 2773.
July 7, 1933.
Appeal from the District Court of the United States for the District of New Hampshire; George F. Morris, Judge.
Action by Rose P. Ledo, administratrix of the estate of Mrs. Jones, deceased, and action by Mrs. Crate against Roscoe Higgins and another. From judgments for plaintiffs, defendant named appeals.
Affirmed.
Stanley M. Burns, of Dover, N.H. (George T. Hughes and Hughes Burns, all of Dover, N.H., and Wilfred A. Laflamme, of Manchester, N.H., on the brief), for appellant.
John M. Stark and Ora W. Craig, both of Concord, N.H., for appellees.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
These were two actions at law by different plaintiffs against the same defendants to recover damages for personal injuries and death caused by a collision of automobiles which took place on the highway between Concord and Dover, N.H. In the District Court there were verdicts and judgments for the plaintiffs. Only the defendant Higgins has appealed; as to the other defendant, Hobbs, the record has been amended to show a formal severance.
There was evidence upon which the jury might have found the following facts: The collision occurred at an intersection of roads. Higgins was driving one of the cars, and was going east. Hobbs was driving the other car; he was going north. The road on which Higgins was traveling, though not legally established as a "through road," was so marked and was guarded by "stop" signs on the crossroad on which Hobbs was proceeding. As the two cars approached the intersection, they were visible to each other for some distance. On the opposite side of the intersection from Hobbs, the view of the crossroad from the road along which Higgins was approaching was "obstructed" within the meaning of the law.
Higgins testified that he seasonably observed Hobbs' car, but, relying on the "stop" sign at the intersection — of which he was aware — and assuming that Hobbs would observe it, kept on at about twenty miles per hour. There was evidence, however — though rather slight — to the effect that Higgins did not see Hobbs until the cars were close together, and that his speed was considerably higher, though not what could be thought reckless.
Hobbs testified that he failed to notice either the Higgins car or the "stop" sign. It seems clear that he neither stopped nor appreciably slowed at the intersection, and came out into the "through road" as the Higgins car was coming into the intersection. In the collision which followed, the Hobbs car struck the rear end of the Higgins car, and the latter was overturned. Mrs. Jones, a passenger in it, was thrown out and so injured that she died shortly afterward; the first suit is by her administrator. The other passenger in the Higgins car, Mrs. Crate, was also injured; she is the plaintiff in the second suit.
The first question is whether there was any evidence warranting a finding that negligence on the part of Higgins entered into the accident. He contends that there was not, and that the jury should have been instructed to return verdicts in his favor. His contention is that the accident was plainly due to the gross negligence of Hobbs, and to nothing else, and that this was so clear that it ought to have been ruled as a matter of law.
The presiding judge instructed the jury that "it was the duty of Hobbs, on approaching the stop sign, to bring his car to a full stop and to observe the conditions of traffic in both directions before entering the intersection of the highway." "As to the defendant Higgins," he said, "there is no question * * * but that, because of the stop sign at the point of the intersection with the Suncook-Pittsfield road, Higgins had the right of way." These instructions were as favorable to Higgins as he could rightly expect. With regard to speed, the presiding judge called the jury's attention to the statute requiring reasonable and proper speed; to the statute requiring drivers of automobiles to slow down and give timely signals with the horn on approaching any intersecting way; to the statute making speed in excess of fifteen miles per hour prima facie unreasonable when approaching and traversing an intersection of highways where the driver's view is obstructed and defining what shall be deemed "obstruction." The statutory law and the common law bearing on the situation were clearly and carefully explained to the jury in connection with the evidence before them.
It was unquestionably open to the jury to find that Higgins came into the intersection of the ways without having given any timely signal with his horn. If the statute requiring such signal applied to the situation, it is clear that there was evidence of negligence on his part. The statute reads as follows: "Upon approaching any intersecting way or a curve or corner in a way, every person operating a motor vehicle shall slow down and give timely signal with his bell, horn, or other device for signaling." N.H. Laws of 1915, c. 129, § 7. Higgins contends that this statute does not apply to drivers on "through ways." Numerous requests for rulings based on the assumption that he was on a "through way" were made by him. They are inapplicable because, as above stated, the road on which he was travelling was not of that character. The presiding judge so ruled, and he was unquestionably right; indeed, no exception was taken to the instruction.
As to the conduct of Higgins, the judge instructed the jury that: "Applying the statute to the situation before you, it was the duty of Higgins to give warning of his approach and to slow down and proceed with care before entering the intersection of the highways, particularly as he knew that a car was approaching from an intersecting way. It is true that he had the right of way and that he had reason to believe that anyone approaching on the Suncook-Pittsfield road would observe the 'stop' sign so that he could pass in safety. But this fact alone does not relieve him from his duty of using reasonable care for his own safety and the safety of those riding with him and obeying statutory provisions; and if you find that his failure to sound the horn or his failure to proceed with caution constituted negligence and, if his negligence contributed to the injuries of Mrs. Crate and the deceased, then he might be held liable, either individually or in connection with Hobbs."
As the context clearly shows, the statute referred to was the general one requiring drivers to slow down and signal at all intersections of way (N.H. Laws of 1915, c. 129, § 7), not the one directed specially at intersections at which the view is obstructed and the speed, prima facie reasonable, is limited to fifteen miles per hour. (N.H. Laws, 1927, c. 76, § 2). The instructions were clearly correct. We do not mean to intimate that they would not have been correct, even if the road had been legally established as a trunk line under N.H. Laws, 1929, c. 119. While the statute relating to intersections where the view is obstructed was read to the jury in connection with other statutes, it appears not to have again been referred to in the charge. No request to differentiate between the two statutes was made at the conclusion of the charge. The defendant never at any time during the trial appears to have taken the position that, though the general statute relating to intersections might apply, the statute relating to obstructed intersections did not. The point was referred to in one of the defendant's requests for rulings, but was there combined with the assumption that the road was a "through way," which made the request as a whole incorrect. In the form now urged, the contention that the statute relating to intersections with obstructed view did not apply appears to be an afterthought, not open because not called to the attention of the presiding judge. Tuttle v. Dodge, 80 N.H. 304, 116 A. 627.
It was clearly open to the jury to find that, if Higgins had sounded his horn, Hobbs might have heard it and stopped, and the accident might have been avoided. It could not therefore be ruled as a matter of law that no negligence on the part of Higgins entered into the accident. On all the evidence, the case was one for the jury to decide.
The most doubtful question is whether the instructions as to the due care of the injured person were adequate. The jury were told in general terms that contributory negligence on their part was alleged, and it was a question of fact whether it had been established. The presiding judge expressed his own view that it had not. The law of New Hampshire undoubtedly is that negligence on the part of the driver of an automobile is not imputed to an invited passenger in it, and that the latter has the duty of exercising the care reasonably to be expected of one in his situation to look out for his own safety. Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457; Jones, Adm'r, v. Boston Maine Railroad, 83 N.H. 73, 139 A. 214; Williams v. Railroad, 82 N.H. 253, 132 A. 682. The thirteenth request was properly refused, since the defendant thereby in effect requested the judge to rule that any failure to use ordinary care on the part of the passengers for their safety constituted in law contributory negligence. The fourteenth request was also properly refused, since the doctrine of imputed negligence is not in force in New Hampshire. The charge as a whole was unusually fair, clear, and able, and presented the case to the jury in a manner which it would not be easy to improve upon. The finding against Higgins may have been severe, but it was for the jury to say.
The other assignments of error have been examined. They seem to us not well founded, nor to require discussion.
The judgment of the District Court is affirmed, with costs to the appellees.