120 A. 258 | N.H. | 1922
There was no error in the denial of the motion for a directed verdict. Whether, at the place and time, operating an automobile without driving lights was careful or careless was question of fact upon which there was conflict in the evidence as there was also as to the amount of light. It does not conclusively appear that it was so light at the time of the accident that reasonable men might not conclude that prudence in the operation of a car in that place required the use of driving lights. Upon the account of the accident given by the defendant and his friends, occupants of the car, it might be difficult to find that the absence of the driving lights, if negligent, was cause for the injury. Their evidence tended to prove that the decedent came from behind a car in front running with his head down directly toward the defendant's car, and ran into it, and that he could not have been seen earlier if the driving lights were on. Another witness gave an entirely different and inconsistent account of the accident. Her testimony was to the effect that the decedent was driving his hoop on the right-hand side of the street, going in the same direction that the defendant was and that the defendant came up from behind and struck him. While if her recollection of the place on the highway where she saw the decedent was correct, he must have suddenly moved into the street to be struck as he was, it could have been found, if this witness was believed, that with the driving lights on, the decedent might have been seen in season for the defendant to have warned him of the approach of the car as required by statute, "upon approaching a pedestrian who is upon a traveled part upon highway and not upon a sidewalk" (Laws 1915, c. 129, s. 7), so that the decedent might have escaped with his life even if the defendant could not have stopped the car so as to otherwise avoid *494
a collision. The statute (Laws 1919, c. 161, s. 5) prohibits the operation of a motor vehicle "so that the lives or safety of the public might be endangered." Operating such a vehicle without driving lights in such darkness that members of the public who might be in its path could not be seen in season to profit by the warning which it was the duty of the motor's driver to give, might be found to be a violation of this statute and negligence. It is true there was evidence the occupants of a car preceding the defendant's did not see the decedent where the witness said she did. This is conflict, not absence, of evidence. Goy v. Director General,
The charge of the court is reported in full and the defendant contends that this submitted only three questions to the jury, and that by force thereof the plaintiff waived all grounds of negligence not expressly set forth in the charge. The only method by which advantage can be taken of what was said or not said in the charge to the jury is by exception. Speares Sons Co. v. Railroad, ante, 243, 244. If no exception is taken there is no occasion to print the charge in the record, and it is presumed that the charge was correct, or at least satisfactory to the non-excepting party. In this case the charge is made a part of the record. If on examination errors of law appear, the presumption still remains so far as no exceptions were taken that the party now objecting was satisfied with the manner in which the case was submitted to the jury. The charge confines the plaintiff to the specific acts of negligence set forth in the writ, which are stated to be the failure to have such headlights in operation as the law requires, and the failure to give warning by sounding the horn or signaling devices required by law. This fairly states the contentions of the plaintiff in the writ, and under the evidence. The charge, however, fails to inform the jury that the law required the defendant to use reasonable care in providing such lights as were necessary for the safe operation of his car with due regard to other users of the highway or to tell them of the *495
statutory prohibition against operating an automobile so that the lives or safety of the public might be endangered above referred to, but states to the jury the specific requirements of the statute that automobiles shall display at least two lighted lamps on the front of the car, from one-half hour after sunset to one-half hour before sunrise, and that the front lights shall be sufficient to be visible at least two hundred feet in the direction in which the motor vehicle is proceeding. Laws 1917, c. 229, s. 6. The defendant's car was equipped with lights, called signal or side lights, and there was no evidence that they were not visible for the distance required by statute. The evidence was that lights of this character were visible to a distance in excess of the requirements of the statute and that these lights on the defendant's car were seen just before the accident by the occupants of another car distant more than two hundred feet. The evidence conclusively established the defendant's compliance with the statute, the violation of which the charge permitted the jury to find and consider as a ground of negligence. Exception thereto must have been sustained. But no exception was taken and the objection is waived. The absence of exception also disposes of the objection now made that there was no evidence that the defendant might have avoided the injury after discovering the decedent. Bourassa v. Railway,
The defendant excepted to the question, "How far ahead would you say those headlights would throw?" The only lights previously mentioned were the side lights. If the question referred to these lights, and to their legal sufficiency under the statute, the exception would appear to be well taken, for the question under the statute is not how far ahead such lights would light the roadway, but how far ahead these lights could be seen by one in the path of the oncoming car. The answer to the question shows it was understood to refer to the driving lights. A prior question as to how far ahead the side lights would throw so the operator of the car could see, was not objected to, and on the question whether such lights rendered at the time the use of driving lights unnecessary, the inquiry was competent.
The remaining question relates to the statutory signal required to be given upon approaching ways intersecting the road upon which a motor is proceeding. The statute (Laws 1915, c. 129, s. 7) provides, "Upon approaching any intersecting way or a curve or corner in a way, every person operating a motor vehicle shall slow down and give timely signal with his bell, horn, or other device for signaling." This section is an amendment by reenactment with additions of s. 12, c. 133, Laws of 1911, without change, however, of this provision. Section 1 of c. 133 defines the meaning of the terms used in the chapter by which they are to be construed "unless a different meaning is clearly apparent from the language or context, or unless such construction is inconsistent with the manifest intention of the legislature." This section provides, "Way shall mean any public highway, street, avenue, road, alley, park or parkway, or any private way laid out under authority of statute." These provisions have been repeatedly reenacted without change. Laws 1915, c. 129, s. 1; Laws 1917, c. 229, s. 1; Laws 1919, c. 161, s. 1. Due care may require the giving a signal upon approaching an intersecting way which is not laid out under authority of statute, but the legislature did not think it wise to apply the command of statute law to any such except those so laid. A way in use may be either public or private. A private way does not fall within the definition of the statute unless it is laid out under statute authority. Public highways are only such as are laid out in the mode prescribed therefor by statute or as have been used as such for public travel for twenty years. P. S., c. 67, s. 1. As there was no proof *497 the intersecting streets, Salisbury, Garmon and Gertrude, had been laid out as private or public ways or had been used for public travel for twenty years, the exception to the failure to instruct the jury that the defendant was not in fault because of his disobedience of the statute, in other words, was not for this reason guilty of negligence as a cause of the injury, was on the ground assigned by the defendant well taken, as also the exception to the instruction given that the streets named were intersecting ways within the meaning of the statute.
The plaintiff urges that proof of the public character of the streets would be shown by the record of the laying, which would be addressed to the court and not to the jury, and that therefore the error might now be corrected by producing the evidence to the court.
In Hutchins v. Gerrish,
If a record had been admitted establishing the public character of the streets over a technical objection to its sufficiency which can now be obviated, the case would have been within the authorities, but no record was offered. It does not appear whether the public character of the streets is provable by record or user or whether on presentation of the record some question of fact may not be presented upon which the jury must pass. In Manning v. Railway, ante, 404, it was not held that the legal existence of a highway necessary *498 to sustain the verdict could be established by proof addressed to the court. The court passed to the consideration of the material questions in the case upon the assumption that the defect might in some way be cured without suggesting how this should be done, whether by a trial of this issue by the court, or by another jury.
But a record of a public laying if produced would not render unexceptionable the court's refusal to instruct the jury that the defendant was not in fault for failure to give an audible signal on approaching these streets. It would merely answer the reason the defendant gave for the request. Having given a sound reason for his request, if the plaintiff should be permitted to furnish evidence meeting this objection, is the defendant estopped to allege other grounds?
If the presiding judge makes a mistake correctible [correctable] at the time if made known, the objecting party cannot keep silent relying upon a general exception even. Mason v. Railway,
As has been said, a party cannot take advantage of an error in the charge to which he does not except. But this does not prevent the court from transferring and this court from considering a question of law raised by neither of the parties. State v. Almy,
The evidence of a mistrial is so clear that the verdict ought not to stand. Technicalities need not, however, be entirely laid aside. The exception to the refusal to charge is sufficient to destroy the verdict. The defendant was improperly placed before the jury as operating his car in defiance of the statutes of the state. It cannot be said that this view which the jury must under the instructions have entertained to find the verdict they did find may not have influenced their treatment of the question of damages. It does not "clearly appear that the effect of the error did not extend to all the issues tried." McBride v. Huckins,
It therefore would be useless to consider the contentions of the *500 defendant that the evidence at this trial fails to sustain a verdict for the amount found. At another trial evidence may be offered of probable unusual earning power and probable extraordinary longevity of the decedent, which may justify an exceptional finding as to damages.
Exception sustained: new trial.
SNOW, J., was absent: the others concurred.