Opinion
No. 4198.
Decided April 7, 1953.
A request for findings is properly denied where it is rendered unnecessary by the findings expressly made and not so designed as to request that the facts be found within the meaning of R. L., c. 370, s. 13. Where the defendant turned his motor vehicle to his left without warning after indicating that he was going to park by applying his brakes and pulling to the right shoulder of the road, the plaintiff who was operating his vehicle in the same direction was not contributorily negligent as a matter of law in colliding with such vehicle. Certain findings of fact by the Trial Court relating to the defendant's conduct just prior to the accident were supported by the evidence.
CROSS ACTIONS IN CASE, for negligence, to recover damages resulting from a collision between two automobiles at Rochester on the forenoon of March 13, 1950. Both vehicles were traveling in a northerly direction, and the collision occurred when the defendant turned left to enter a private driveway. Trial by the Court (Goodnow, C.J.). The Court made findings and rulings in writing, and entered a verdict for Vakalis in the sum of $397.98 in the action brought by him, and for him as defendant in the cross action.
Smart, herein referred to as the defendant, excepted to certain rulings made in the course of the trial, to certain of the written findings and rulings, and to the verdicts. The defendant's bill of exceptions was allowed and transferred by the Presiding Justice.
Prior to the collision the parties were proceeding in a northerly direction, out of Rochester. It was snowing at the time. The plaintiff testified that both vehicles were traveling between thirty-five and forty miles an hour, until the defendant pulled to the right as if to stop, "which he did for probably a second or two and with no warning at all he decided to make a lefthand turn," and the collision ensued. The plaintiff further testified that he slowed his automobile to a speed of twenty to twenty-five miles an hour as the defendant came to a stop, sounded his horn and had increased his speed again somewhat, before the collision occurred.
The defendant testified that he was traveling at a speed of fifteen miles an hour before reaching the driveway, and that he slowed down to ten miles an hour when two or three feet south of the driveway, blinked his rear lights by applying his brakes several times, shifted into second gear, and hearing no warning signal from the rear, turned to the left. It was not disputed that the rear window of the defendant's automobile was covered with snow, so that he could not see to the rear.
The Trial Court made the following findings: "As the defendant approached his driveway he slowed down almost to a stop and pulled slightly to his right . . . He gave no hand or light signal indicating a left turn but he did put on his brake which probably lighted his brake light and did this a few times to turn the light on and off. When he heard no horn he turned sharply to his left to enter his driveway just as the plaintiff was about to pass him. The collision occurred on the highway about opposite the defendant's driveway. The plaintiff . . . observed [the defendant's car] slow down and pull to its right. The plaintiff blew his horn and started to pass. When it was too late for any saving action by the plaintiff the defendant cut sharply to the left and the collision occurred. So far as the conduct of the defendant is concerned the Court finds that he was negligent in the manner in which he turned abruptly across the highway without either looking behind him or giving any indication by hand or other signal of his intention to so turn and that this negligence was the sole cause of the collision . . . As to the plaintiff, the Court finds that he acted as an ordinary man of average prudence under all the circumstances and that he was not negligent. It is also found that his speed was not excessive or unreasonable under all the circumstances and that he had no opportunity to avoid the collision."
John M. Brant for James G. Vakalis, filed no brief.
Charles F. Hartnett (by brief and orally), for Charles Smart.
The defendant argues that a finding of contributory negligence on the part of the plaintiff was compelled as a matter of law because of his admitted speed, and his failure to anticipate the defendant's conduct (Fine v. Parella, 92 N.H. 81; Tufts v. White, 92 N.H. 158), and to avoid the accident by using "the almost thirty feet of pavement," presumably to the left of the Smart car before it commenced its turn.
In support of this argument reliance is placed on the denial of the defendant's request number three, that "there is evidence that the speed of the Vakalis motor vehicle was excessive . . . and that such speed caused or contributed to cause the accident." The argument is made that by denying the request the Court ruled as a matter of law that negligence on the part of Vakalis could not be found from the evidence. This contention misinterprets the action of the Trial Court in denying the request. Under the statute (R. L., c. 370, s. 13), the Court is required upon request to state "the facts found." Black v. Fiandaca, 98 N.H. 33, 38. The Court expressly found that Vakalis' speed "was not excessive or unreasonable under all the circumstances." This was a finding of fact within the meaning of the statute, and the defendant's third request was properly denied, both because made unnecessary by the express finding, and because it was not a request to state "the facts found," within the meaning of the statute. See Pettee v. Chapter, 86 N.H. 419, 425, 426; Oullette v. Ledoux, 92 N.H. 302; see also, Thistle v. Halstead, 96 N.H. 192; Bolduc v. Company, 97 N.H. 360, 363.
The evidence did not establish that the plaintiff was guilty of contributory negligence as a matter of law. The defendant's argument, based upon Fine v. Parella, supra, is answered by what was said in Holt v. Grimard, 94 N.H. 255, 257. Whether or not the plaintiff was careless under the circumstances disclosed by the evidence in this case was a question of fact. See also, Savoie v. Company, 95 N.H. 67, 72. The plaintiff was not required to anticipate that the defendant would turn to his left without warning (see Laws 1949, c. 232) after having indicated by applying his brakes and pulling to the right-hand shoulder of the road that he was about to park.
There was no error in the finding that the defendant "slowed down almost to a stop." The defendant testified that he applied his brakes several times but maintained some speed by use of a hand throttle, while the plaintiff testified that the defendant stopped "probably" for a second or two. The plaintiff also testified that he blew his horn "knowing that he wasn't going to stop." The defendant's conduct as found by the Court was not so far different from the plaintiff's description of it, as to make recovery by the plaintiff "inconsistent with honesty and good faith." Bartis v. Warrington, 91 N.H. 415, 418. Cf. LaDuke v. Lord, 97 N.H. 122, 125. The finding that the defendant did not stop might be thought less prejudicial to him than a contrary finding would have been.
The issues presented were wholly issues of fact as to which the findings of the Trial Court are conclusive. No error of law appears from the record.
Judgment on the verdicts.
GOODNOW J., did not sit: the others concurred.