Opinion
No. 3770.
Decided December 7, 1948.
A bicyclist entering a highway from a private driveway and an operator of a motor vehicle approaching such intersection on the highway each owes to the other the reciprocal duty to act reasonably; neither has a statutory right of way. In passing upon motions for nonsuit and directed verdict the trial court is obliged to consider the evidence for the plaintiff as true and to construe all the evidence most favorably to the plaintiff. The contributory negligence of a bicyclist injured in a collision with a motor vehicle but who exercised some care for his own safety was for the jury. A mistake of judgment of a bicyclist in entering a highway from a private driveway, in failing to look for approaching cars in the opposite direction instead of the direction he did look at a particular time did not constitute contributory negligence as a matter of law. A bicyclist, seventeen years of age, is entitled to have the jury make allowances for his age and stage of development in determining his due care.
CASE, for negligence resulting in personal injuries to the plaintiff when the bicycle upon which he was riding and an automobile operated by the defendant collided. The accident occurred June 23, 1942, in the town of Salem at the intersection of a public highway and a private driveway leading to the Lilly house on the westerly side of said highway. The defendant with his fiancee as a passenger was proceeding southerly on the highway and the plaintiff, who was seventeen years of age, easterly down grade along the driveway. At point in the center of the driveway 26 feet west of the center of the road, which was 19 feet wide, the visibility of a boy of the approximate height of the plaintiff on a bicycle was good as far as a point in the highway 206 feet north from the center of the driveway. The boy would be just outside the fence along the front of the Lilly property; and the heavier foliage and trees along the northerly boundary ended about 18 feet from the west edge of the highway. Between the road and this row of trees was an area of low foliage 2.5 feet high. The height of the bicycle rider above the ground was estimated to be five feet.
Trial by jury with a view, and verdict for the plaintiff. The only exceptions argued are those taken to the denial of the motions for a nonsuit and for a directed verdict. These were reserved and transferred by Lampron, J.
Robert W. Upton, John H. Sanders and Frederic K. Upton (Mr. Sanders orally), for the plaintiff.
Alvin A. Lucier (by brief and orally), for the defendant.
Neither party had a statutory right of way or one in the same sense that a locomotive engineer has it; each owed to the other the reciprocal duty to act reasonably. Tetreault v. Gould, 83 N.H. 99.
In passing upon the motions for a nonsuit and for a directed verdict, the Court was obliged to consider the evidence for the plaintiff as true and to construe all the evidence most favorably to the plaintiff. Carney v. Railway, 72 N.H. 364, 369.
The defendant argues that since it was physically possible for the plaintiff to see the defendant and his automobile as quickly as the defendant could see him, contributory negligence must bar any recovery based upon negligence of the defendant. The issues of fault on the part of each operator cannot be so simply decided as by considering only the physical possibility of vision that each had of the other. That is only one factor. Whether each exercised reasonable care must be determined in the discretion of the jury by all the circumstances under which each respectively acted.
There was evidence from which it could have been found that the defendant was not reasonably attentive. The plaintiff testified that he went down the southerly side of the drive at about five miles per hour, using his coaster brake to control his speed. It took him proximately four seconds to travel the last 30 feet to the point of the collision when his bicycle was only two or three feet from the east edge of the tar. During this time or at least so much of it as the defendant going at a speed of 35-40 miles per hour used in traveling from the point 206 feet northerly, the plaintiff was visible to the defendant. Although the defendant did not see the bicycle until it was about ten feet from him, it could be found that he was at fault for not noticing it earlier. Two other bicyclists had preceded Frank Shimkus down the driveway. At the time of the collision the first of these had reached a point about 150 feet and the other a point about 100 feet northerly of the intersection. The defendant testified: "I didn't notice any bicycle before the accident." This testimony could have served as some indication of the amount of attention that the defendant was giving to the road and travelers upon it.
This inattention may have been causal of the accident. The defendant testified that he should have been able to stop his car going at the rate of forty miles an hour in around ninety feet. In order to avoid the collision it was not necessary that the automobile come to a complete stop but merely that it slow sufficiently so that the bicycle, which in fact came close to the easterly edge of the road, could escape.
"The contributory negligence of a bicyclist injured in a collision with an automobile is usually for the jury." 10 Blashfield (Perm. ed. Part 2) Cyc. of Automobile Law and Practice 46. See also, Halley v. Brown, 92 N.H. 1, 3. Coming down the driveway, the plaintiff looked both to the north and the south for any approaching traffic. As he passed the barbed wire fence he looked north, then south, and again to the north when he first saw the automobile, 60-70 feet away. At that time the front wheel of his five foot long bicycle was two or three feet onto the tar road. He continued 10 or 12 feet across the road and was struck. Clearly, the plaintiff took some care for his own safety. Halley v. Brown, supra, 3.
It is true that the view taken by the plaintiff was not efficient. If he had looked north instead when he was looking south, he undoubtedly would have seen the automobile in time to have avoided the collision. This error falls into the class designated in MacKelvie v. Rice, 92 N.H. 465, 467, as mistakes of judgment, which are not necessarily careless mistakes, rather than into the class of cases in which the plaintiffs claim they looked but did not see or that in which the plaintiffs should have looked but did not.
At the time of the accident the plaintiff was a boy seventeen years of age. As such, he was entitled to have the jury make allowance for his age and stage of development in applying to his conduct the standard of reasonable care. Charbonneau v. MacRury, 84 N.H. 501; Howe v. Company, 87 N.H. 122, 123; Katsikas v. Railway, 90 N.H. 21, 23. See also, 57 Yale Law Journal 554; Restatement, Torts, s. 283, comment e.
The motions of the defendant for a nonsuit and for a directed verdict were rightly denied.
Exceptions overruled.
BRANCH, C.J., did not sit: the others concurred.