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Brown v. Mailhot

Supreme Court of New Hampshire Merrimack
Jan 4, 1938
196 A. 764 (N.H. 1938)


Decided January 4, 1938.

A verdict cannot be sustained if based upon a finding which is a physical impossibility. In an action for running down the plaintiff when crossing a highway the only conclusions possible from the plaintiff's own testimony were that he saw the defendant's car and carelessly stepped in front of it or that he did not see the car because he was careless in the manner he looked for it.

CASE, for negligence, by a pedestrian who was struck by an automobile operated by the defendant, while crossing a public highway in the night time. Trial by jury with a verdict for the plaintiff. Transferred by Johnston, J, upon the defendant's exceptions to the denial of his motions for a nonsuit and a directed verdict; to the denial of his requests for instructions and to the denial of his motion set aside the verdict.

The evidence tended to prove the following facts.

The accident happened December 9, 1934, upon the Daniel Webster Highway, between Concord and Manchester, at about 9 P. M. on a clear night. Prior to the accident the plaintiff had been driving from Concord to Manchester. He stopped his car on the westerly side of the highway, which at this point consists of three lanes, nearly opposite a filling station on the easterly side thereof. Alighting from his car the plaintiff crossed the highway to the filling station in order to purchase some alcohol for the radiator of his car. Before reaching the station, which was located approximately 25 feet from the easterly edge of the highway, he was met by an attendant, to whom he gave his order, and immediately started to retrace his steps to his car. From a point at the edge of the highway in front of the filling station, there is a clear, unobstructed view to the south for a distance which the plaintiff estimated as two or three hundred yards. He testified that on his way back towards his car he looked three times to the south to see if any cars were coming, but saw none. The first point at which he said he looked was approximately 14 feet from the easterly edge of the highway; the second point was from 2 to 4 feet from the easterly edge of the highway, and his third observation was taken just as he reached the edge of the highway. When he looked south for the last time he testified that he "could see nothing but blackness." He continued to walk naturally and slowly a distance of 3 or 4 feet beyond the easterly edge of the roadway and there suddenly found himself immediately in front of the headlights of the defendant's car, which was from 4 to 6 feet away. The collision immediately followed. The case was complicated by the fact that almost at the moment when the defendant's car struck the plaintiff, it was struck from the rear by another car driven by one Simpson, against whom action was also brought by the plaintiff but who was exonerated from responsibility by the verdict of the jury.

O'Connor Saidel and J. Francis Roche (Mr. Roche orally), for the plaintiff.

Wyman, Starr, Booth, Wadleigh Langdell (Mr. Langdell orally), for the defendant.

A verdict which postulates a physical impossibility cannot be sustained. Fraser v. Railway, 84 N.H. 107; Niemi v. Railroad, 87 N.H. 1. It is an inescapable conclusion in the "present case that if the plaintiff had looked, as he says he did, before tempting to cross the road, he could not have failed to see the lights of the defendant's car where he says that he could see nothing but blackness.

The plaintiff testified that he looked to the south at three different points as he approached the highway and that on none of these occasions did he see any cars approaching from that direction. The defendant argues that upon all these occasions his car and another which was following close behind it must have been in plain sight. We need not pause to consider what the first two observations described by the plaintiff must have disclosed. It is sufficient to say that the plaintiff claimed to have looked for the last time just as he reached the roadway. The view to the south from this point, cording to the plaintiff's own testimony, was clear and unobstructed for a distance of from 600 to 900 feet. Since the plaintiff was struck after walking only 3 or 4 feet from this point, the only possible conclusion is that the defendant's car, as well as the Simpson car which was following, must have been within the plaintiff's range of vision at the time of his last observation. It was not questioned that the headlights of both cars were lighted at the time, and hence the plaintiff's testimony that he "could see nothing but blackness" must be rejected as impossible.

"Where testimony is thus in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ." Budaj v. Company, 108 Conn. 474. "It is vain for a person to say he looked when, in spite of what his eyes must have told him, he moved into the path of an approaching car or train by which he was immediately struck." Dando v. Brobst, 318 Pa. St. 325. As in Fraser v. Railway, supra, the plaintiff "gave an impossible account of his conduct. . . . It is wholly contrary to reason that the car was not in plain sight" at the time he entered the highway. Under these circumstances the only possible conclusions that can be drawn from the plaintiff's testimony are, (1) that he saw the defendant's car and stepped in front of it without exercising any care for his own safety, or (2) that he did not see the defendant's car because "he was careless in the manner he looked for it." Niemi v. Railroad, supra. Either conclusion is equivalent to a finding that he was guilty of contributory negligence, and there must accordingly be

Judgment for the defendant.

All concurred.

Summaries of

Brown v. Mailhot

Supreme Court of New Hampshire Merrimack
Jan 4, 1938
196 A. 764 (N.H. 1938)
Case details for

Brown v. Mailhot

Case Details


Court:Supreme Court of New Hampshire Merrimack

Date published: Jan 4, 1938


196 A. 764 (N.H. 1938)
196 A. 764

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