79 A. 493 | N.H. | 1911
Lead Opinion
The defendants concede the validity of the charge as an abstract proposition, but contend that it was inapplicable to the facts of this case. The question therefore is whether there is any evidence that ordinary care on the part of the defendants after they knew of the plaintiff's danger would, and that like care by the plaintiff after he was conscious of his danger would not, have prevented the accident. Altman v. Railway,
The plaintiff testified that he did not know of his danger until his team was on the track in front of the approaching car. The motorman testified that he knew the plaintiff was in danger before the team reached the north cross-walk, thirty feet or more from the the place where the accident happened. The team was moving at a speed of five miles an hour. The evidence was conflicting as to the speed of the car and its distance from the point of collision when the motorman first knew of the plaintiff's danger; but as the speed of the team and its distance from that point is known, *81 it is a simple matter to compute the position of the car. If the speed of the team and car were the same, they were the same distance (thirty feet) from the place where the accident happened. If the speed of the car was two or three times as great as that of the team, the car was two or three times as far away (sixty or ninety feet). A car moving at the rate of five miles an hour can be stopped almost instantly; one moving at ten miles an hour, within twenty-five feet; and one moving at fifteen miles an hour, within thirty-five feet. It can be found therefore that ordinary care on the part of the motorman after he knew of the plaintiff's danger would have prevented the accident, no matter how fast the car was moving; and the defendants do not contend that it cannot be found there was nothing the plaintiff could have done to prevent the accident after he knew of his danger.
Exception overruled.
PARSONS, C. J., and WALKER, J., concurred.
Concurrence Opinion
We agree in the result reached in this case, upon the ground that there was evidence from which the jury could find that, after the plaintiff was in a position of danger from which he could not extricate himself by the exercise of due care, the defendants could have avoided injuring him by the exercise of like care.
