Decided December 7, 1948.
Where there was nothing the defendant could reasonably have done under the circumstances to avoid collision with the plaintiff's motor vehicle skidding crosswise down a slippery highway there was no evidence upon which a verdict for the plaintiff could have been predicated.
ACTIONS OF CASE, to recover for the death of plaintiff's intestate in the first action and for property damages to plaintiff's automobile in the second action. Trial by jury with a view resulted in a disagreement. Defendant's exceptions to the denial of motions for a nonsuit and a directed verdict and the failure to give requested instructions together with plaintiff's exceptions to instructions given were transferred by Lampron, J.
The facts are summarized on behalf of the plaintiffs as follows: "The accident occurred on Route 28, Barnstead, New Hampshire about midway between Barnstead and Pittsfield on the 6 day of February, 1946. The defendant, John H. Moore, was proceeding south, ascending what is known as Mayette Hill towards Pittsfield. It was a little after 3:00 in the afternoon, misting and cool. The surface of the highway was partially covered with a thin coating of ice and a portion of the hill was soft. On each side of the highway hard pack snow banks rose to a height of 2 1/2 to 3 feet. At the scene of the accident the road is of macadam black top construction, and in the winter time the traveling portion is 24 feet in width. Traveling south one proceeds up a rather steep hill and the highway curves slightly to the west or to the defendant's right. The defendant was operating his automobile and approaching the foot of the hill at a speed of 20 to 30 m.p.h., and was on his right side of the road. The deceased was a boy of 16 years of age, and was traveling in a northerly direction and was descending Mayette Hill. As he came around the curve at the top of the hill, his car skidded to the right hand or east side of the road. The defendant says that in his opinion that was about 150 to 300 feet away. Then the Herndon car or plaintiff took a course towards the westerly side of the road and when a few feet from the snow bank started to go back to the easterly side of said highway, and then it started to take a slip and slide in a diagonal position down the middle of the road until it ran into the defendant's car.
"When the Herndon car was on the defendant's side of the road, it was then about 75 feet away. The defendant testified that when he saw the plaintiff's car skidding over on to his side of the road, he then and there decided what he would do. He had in mind putting his car into second speed, to go up the hill on the left side and avoid the boy. He thought the boy would hit the banking on the westerly side of the road and roll over. The defendant also had in mind that if he stopped his car on the icy road he would have a hard time to get started again. The defendant further states that he could have stopped his car in two car lengths if necessary. There was no evidence that at any time Mr. Moore applied his brakes. As to the place of contact, it was a question of fact for the jury to decide. After the collision, the Herndon car was on its right side of the road, heading practically north, and that the front of the Moore car was in to the left side of the Herndon car, forming a letter T. It was crosswise in the road. The cushion of the Herndon car was outside opposite the right front door, and that the deceased was buried in the snow bank opposite the right front door of the car he was operating."
Robert J. Doyle (by brief and orally), for the plaintiff.
Jewett Jewett and Thomas J. McIntyre (Theo S. Jewett orally), for the defendant.
In considering the motions for a nonsuit and a directed verdict only the evidence that is most favorable to the plaintiff is considered. It appears that the summary made in behalf of the plaintiff, quoted above, construes the evidence in that light.
The situation that confronted the defendant is similar to the example cited in Mack v. Hoyt, 94 N.H. 492, 494: ". . . the usual skid of a motor vehicle going out of control and abruptly crossing from one side of the road to the other. Generally it is impossible to predict when a skid is going to happen and to avoid the collision after the loss of control and the highway in front of one is blocked. It may not be possible to leave the traveled way or when it is to foresee where the skidding car will go or to keep clear of it. Seldom is there time for reflection."
In view of the slippery condition of the road, the snow banks on each side thereof, and the changing course of the plaintiff's vehicle sliding crosswise down the hill, there is no evidence that the defendant could have avoided the collision. But the evidence discloses that the defendant was on his side of the road and that he was traveling at a legal rate of speed. Neither the plaintiff's intestate nor the defendant could reasonably predict the erratic course of the plaintiff's vehicle before it stopped skidding and sliding.
The defendant's action of keeping the car in motion without applying his brakes was as reasonably calculated to avoid contact with the plaintiff's vehicle, as if he had stopped. The defendant's actions at least had the merit of enabling him in the few seconds involved to maneuver his vehicle if occasion should arise. If the defendant had stopped he obviously would have been unable to take any saving action in the last seconds before the collision.
Considering only the evidence favorable to the plaintiff there does not appear to be anything that the defendant did which can be described as negligent conduct on his part. Bolduc v. Stein, 94 N.H. 89. The plaintiff's claim that he should have stopped or slackened his speed on an icy road when traveling up hill was considered in the somewhat comparable case of Morin v. Morin, 89 N.H. 206, 210: "Only luck, not judgment or care, could lead the defendant to that precise spot in advance of the last unforeseeable loop entered into by the Martin car. And the same observation applies to the contention that due care demanded a slackening of speed by the defendant, or even a full stop. The conclusion that failure so to act was causal negligence would be an unwarranted guess."
In view of the result reached that there is no evidence of negligence on the part of the defendant it is unnecessary to consider the claim of contributory negligence and the exceptions to the Court's charge to the jury.
Judgment for the defendant.