Opinion
Decided June 4, 1935.
THREE ACTIONS OF CASE, to recover for personal injuries sustained in an automobile accident which occurred on the Daniel Webster highway in Merrimack on May 7, 1932. Trial by jury and verdict for the plaintiffs. Motions for nonsuits and directed verdicts were denied subject to the defendant's exception.
The highway at the place of the accident was composed of two lanes of cement. The plaintiffs Schwotzer and Ahern were riding in a two-door sedan driven by the plaintiff Urick. They were proceeding northward toward Manchester when the cars in the short line of traffic ahead of them suddenly stopped. This interruption of traffic was due to the fact that a car was parked on the easterly lane of cement. Urick applied his brakes as soon as he saw that the car ahead of him had stopped but was too close to avoid a collision without turning. There was a ditch on his right. He therefore turned to the left, running partly off the left lane of cement where his car became stalled. He was attempting to start the motor when the defendant driving southward in a Ford roadster ran into him and caused the injuries for which recovery is sought.
The plaintiffs' evidence tended to prove that the defendant was more than 200 feet distant when the Urick car became stalled, that he was driving very fast and, without checking his speed, attempted to pass between the rear of the Urick car and the line of cars on his left. The defendant himself testified that he saw the parked car when 300 feet away and "slowed down" in order "to see what the other cars were going to do," that when they "appeared to slow down" and "draw in behind No. 1," he "went back" to his "original speed" of 42 or 43 miles an hour, when the Urick car "suddenly swerved out of line" and "covered" his lane.
A bill of exceptions was allowed by Burque, J.
Aloysius J. Connor (by brief and orally), for Schwotzer and Ahern.
John D. Warren, for Urick.
Lucier Dowd (Mr. Dowd orally), for the defendant.
There was abundant evidence of the defendant's negligence. The mere fact that Urick, in the emergency, turned his car to the left did not preclude recovery. Gale v. Lisbon, 52 N.H. 174, 180, 181. See also Reed v. Company, 84 N.H. 156, 159. He had a right to a reasonable use of the road, and in turning to the left he was not attempting to pass the defendant's car. Having rightfully done what he did, he was not liable merely because he helped to create a situation dangerous to others as well as himself.
Nor were the plaintiffs necessarily at fault for failing to jump from the car. The car was stalled and Urick was trying his best to get it started. It was a two-door sedan, and the other plaintiffs were on the rear seat. What due care required under the circumstances was essentially a question of fact. Folsom v. Railroad, 68 N.H. 454, 460.
This conclusion makes it unnecessary to consider the defendant's contention that the plaintiffs cannot recover under the doctrine of the last clear chance. No exception to the submission of that issue was taken.
Judgments on the verdicts.