On July 6, 1957, the plaintiffs in these actions of tort for personal injuries were passengers in an automobile owned and operated by Louise W. Morrison, the defendant’s intestate, on U. S. Route 4 in Grafton, New Hampshire. There was a collision with another automobile in which the plaintiffs were hurt, and the defendant’s intestate received injuries as a result of which she died thirteen days later. The cases were referred to an auditor, findings of fact not to be final. He found for the plaintiffs. The cases were then tried to a jury, who returned verdicts for the defendant. The plaintiffs allege exceptions to the charge.
The findings which the jury could have made may be briefly stated, as the basic facts are nоt, and hardly could be, questioned. The accident occurred about 5:15 p.m. on a dry, sunny day. At the scene Route 4 runs north and south. Going northerly there is a downgrade, “going southerly you come upgrade around a slight curve.” It was a hard surfaced road about twenty-three feet wide divided by a continuous yellow center line as it skirts almost perpendicular cliffs on the easterly side close to the edge of the road and a precipitous unguarded embankment dropping off to railroad tracks on the westerly side.
Thе plaintiff Minnie S. Goodale and her minor granddaughter Nancy were vacation guests at the Morrison summer home in Grafton, and the six occupants of the Morrison car werе returning from a shopping trip to Lebanon. On *609 the front seat with the defendant’s intestate (hereinafter sometimes called the defendant) was her daughter Sally. The plaintiffs were on the back seat with the defendant’s sister-in-law, who was holding her small son on her lap. There were two single lines of traffic moving in opposite directions. Coming north, and second in the other line of traffic, was a convertible coupe driven by one Avis Sargent near the center line on her right side of the road. Suddenly without warning the Morrison car swеrved diagonally across the road and across the yellow line. The left front struck the left front of the Sargent car pushing it back off the road so that its right rear was against thе ledge. The Sargent car had not changed course, but the Morrison car, which had been traveling about ten feet from the center line, suddenly changed course, and аfter striking the Sargent car kept on in a diagonal direction six or seven feet and came to a stop with its right front end four or five feet over the yellow line to the left of the road at a forty-five degree angle with it. The Morrison car stopped almost parallel with the other car. Both cars were badly damaged, and the left front tire of each was flat. No one could offer any explanation for the Morrison car changing course. The defendant herself stated that she did not know what happened. There has been no question raised as to unreasonable speed by the defendant or as to contributory negligence. Indeed, the judge rightly charged that cоntributory negligence could not properly be found.
The judge took judicial notice of the law of New Hampshire. GL L. (Ter. Ed.) c. 233, § 70. Under that law' a gratuitous guest passenger may recover against an operator for injuries caused by ordinary negligence.
Hall
v.
Hamel,
The judge correctly charged the jury that the law of New Hampshire governs the rights of the parties. With reference to the statute just quoted he charged: “It is incontrovertible . . . that the vehicle of which Mrs. Morrison was the operator did cross the yellow linе in the center of the roadway and thereby came into collision with a car which was proceeding on its own right in the opposite direction. . . . [I]n brief, the law says: Don’t сross the center line which is marked upon the public highway. It seems to be beyond dispute that the Morrison car did cross the unbroken line. The fact that the statute was violatеd is evidence of negligence on the part of the person who violated it. It is not conclusive evidence of negligence, because inquiry must be made and should bе made as to all the attending circumstances.” The judge then suggested several such circumstances: a child darting between cars; a heart attack on the part оf the operator; and rocks being thrown. The charge continued: “Now, I cite these instances just to show the reasonableness of the rule of law that the crossing of thе line ... is evidence of negligence. It is not conclusive evidence of negligence. It may warrant the jury in finding that there was negligence, but it does not require the jury to find that therе was negligence.”
After the jury had been out two hours, they sent a communication to the judge which read, “Does the fact that the defendant crossed the solid line on the rоad constitute negligence, where no evidence has been introduced to explain *611 why?” The judge then charged the jury substantially as before. 1
The further instructions were given in the absence of counsel, who filed a written statement of exception on the same day. Eule 72 of the Superior Court (1954).
At the conclusion of the charge the plаintiffs had excepted to the failure of the judge to give their ninth request, which included a citation of
Lavigne
v.
Nelson,
91 N. H. 304. The defendant contends that this request was not embraced within the excеption, and that it was a violation of the fragment doctrine. See
Barnes
v.
Berkshire St. Ry.
We are of opinion that there was error in the charge. There is a fundamental difference from our law in the law of New Hampshire. In
Bresnahan
v.
Proman,
In the case at bar the statute fixed the standаrd of duty. If there was no evidence of any reason for the car swerving over the yellow line, no occasion existed for speculating as to possible explаnations which the evidence did not disclose. The defendant argues that it cannot be assumed that there was no evidence to explain why the Morrison car crossed the center line. In this connection we note that there is no statement in the bill of exceptions that it contains all the evidence.
Perry
v.
Hanover,
Exceptions sustained.
Notes
“On that point I merely have to say this: The burden of proof to establish negligence of the defendant is upon the plaintiff. The fact that the defendant’s vehicle did cross the solid line is evidence of negligence, but it is not negligence in and of itself. The fact the defendant’s vehicle did cross the solid line may warrant the jury in finding that there was negligence, but it does not require the jury to find that there was negligence.”