Opinion
No. 3007.
Decided February 7, 1939.
While a person is ordinarily justified in assuming that others will act carefully, he is not warranted in assuming that their conduct will be perfect. Hence a motorist may be required to anticipate and provide against that occasional negligence of others which is one of the expectable incidents of highway travel.
Action for damages for injuries received by a passenger in the defendant's automobile and resulting from the latter's negligence when rounding a curve whereby a collision occurred with an oncoming car. The defendant was not justified in driving to his left hand along the furthest edge of the eight-inch yellow median line of the highway at thirty-five miles per hour, paying no attention to oncoming traffic, with a limited view of approaching cars but able at a distance of 80 feet to have seen the oncoming car.
In such case the defendant is not relieved from liability because the driver of the colliding car was also negligent in driving to his left to the limit of the median line.
CASE, to recover for injuries sustained by Abraham Himmel while he was riding as a guest in the defendant's automobile. The injuries were caused by a collision between the defendant's car and a car driven by Robert R. Wilkins. The action was brought by Abraham Himmel in his lifetime and prosecuted by his administratrix after his death. Trial by jury and verdict for the plaintiff.
The accident occurred at 9:20 o'clock, standard eastern time, on the evening of July 25, 1935, at Dead Man's Curve, so-called, in Merrimack. The defendant was driving south toward Nashua and Wilkins was driving north toward Manchester. The highway was composed of two cement lanes, each eleven and a half feet in width and each flanked by hard shoulders. The separation of these lanes was designated by a yellow stripe, painted on the surface of the cement and extending the entire distance of the curve. This stripe was eight inches wide (four inches on the inner edge of each lane) and is understood to have been placed there by the State Highway Department for the guidance of traffic.
The collision occurred near the sharpest part of the curve, and there were marks discovered that night indicating that the left wheels of the defendant's car, just before the collision, were running along the easterly edge of the yellow line and the left wheels of the Wilkins car along the westerly edge of the line. Further facts are stated in the opinion.
At the conclusion of the charge the defendant took the following exception: "The Defendant excepts to that part of the Court's charge, allowing the jury to predicate liability on the failure of the Defendant to observe the other car before the collision. The ground for this exception is that there is no evidence that if Mr. Finkelstein did see the other car he could have then avoided the collision."
The defendant also excepted to the denial of his motion for a nonsuit. Transferred by James, J.
Saidel, Lemelin, Hurley Betley (Mr. Saidel orally), for the plaintiff.
Devine Tobin (Mr. Tobin orally), for the defendant.
The yellow stripe in the center of the highway denoted a division of the road into one-way lanes. Brown v. Bush, 220 Ala. 130, 131; 3-4 Huddy, Automobile Law (9th ed.), p. 181. Painted lines are used so generally for this purpose that licensed operators of automobiles are presumed to understand their significance.
The defendant had been driving cars under a New Hampshire license for three or four years and had been a licensed operator in Massachusetts for the preceding eighteen years. He lived in Nashua and had driven over the road in question many times. He knew that he was going upgrade on a sharp curve and that his view of an approaching car would necessarily be limited. Yet, in spite of this knowledge, he saw fit to drive along the edge of the median line at a speed of thirty-five miles an hour and with no attention whatever to traffic from the south. He was so inattentive that he did not see the Wilkins car at all. He testified: "The first thing I knew picking myself up from the ground."
His conduct under the circumstances could fairly be found to involve an unreasonable risk of injury to the plaintiff's intestate. See Flynn v. Gordon, 86 N.H. 198, 201. Nor is he absolved from liability in this action merely because Wilkins was likewise remiss in his duty.
While ordinarily a person may rightfully assume that others will act carefully he is not entitled to assume that their conduct will be perfect. Lovett v. Railway, 85 N.H. 345, 350. Moreover, it is commonly understood that there are some automobile operators who act "with less than normal propriety." Charged with a realization of this fact, a motorist, under certain conditions, may be required "to anticipate and provide against that occasional negligence" which is one of the expectable incidents of highway traffic. See Restatement of Torts, s. 302, Comments j and l; Tullgren v. Company, 82 N.H. 268, 276.
It follows that the defendant, in view of the duty owed to his passenger-guest and the serious harm likely to result from a collision, was not justified, as a matter of law, in heedlessly occupying the extreme easterly limit of the right-hand lane on the assumption that northbound traffic would at all times keep sufficiently to the east of the dividing line to avoid an accident.
The motion for a nonsuit was correctly denied.
There is evidence that the defendant, if he had looked, could have seen the Wilkins car, as it approached, for a distance of eighty feet. The lights of the car must have shown on the curve for some appreciable time before the car itself was visible. The wheels of each car were on the yellow line. It is therefore obvious that the merest turn of the wheels to the right would have averted the collision. The slight action necessary to accomplish this result could be found to be automatic in the case of a driver of the defendant's long experience. There was no error in the instruction to which the defendant excepted.
Judgment on the verdict.
All concurred.