152 A. 275 | N.H. | 1930
In support of its contention that a verdict should have been directed in its favor, the defendant seeks to establish two propositions as follows: 1. There was no evidence that the driver of defendant's truck was negligent. 2. The evidence is conclusive that the plaintiff was negligent.
1. There was evidence from which it might be found that the defendant's truck was started from a stationary position in a city street and after traveling a distance of 46 feet at a speed of from five to seven miles per hour, ran down the plaintiff who was all the time within the range of the driver's vision. The indefinite and evasive testimony of the driver would warrant a finding that from the time when the truck started until the moment of the accident, he was looking to the left and that he paid no attention whatever to the right side of the street from which the plaintiff was approaching. Under these circumstances the jury was clearly justified in finding that the driver was at fault.
2. With respect to the question of the plaintiff's care, this case is governed by the decision in McCarthy v. Souther,
If the possibility that defendant's truck might start at any moment was one which the plaintiff should have recognized, he might, without "negligence or imprudence" assume that it would be operated with due care for his safety. Lyman v. Railroad,
The distinction between the case at bar and Olsen v. Railroad,
The exceptions taken by the defendant to the argument of plaintiff's counsel have not been argued and appear to be without merit.
Judgment on the verdict.
Snow, J. did not sit: the others concurred. *439