66 A.2d 80 | N.H. | 1949
The defendant has presented a strong argument that he had the right of way and that the jury should have been so instructed. While he concedes that the right of way statute (R. L., c. 106, s. 3) by its terms applies only to public ways and although it has never been otherwise construed (Tetreault v. Gould,
In such situations in this jurisdiction, however, the rule has been *446 consistently followed that neither party has a statutory right of way and that "each owed to the other the reciprocal duty to act reasonably." Shimkus v. Caesar, ante, 286, 287; Tetreault v. Gould, supra. The Trial Court followed the statute as written and never changed by the Legislature and as consistently construed in this state since the advent of the modern motor vehicle. If a different rule should apply, it is in the province of the Legislature to so provide by a statute of general application.
The Presiding Judge read and explained to the jury R.L., c. 119, s. 30, which establishes a prima facie lawful speed in a rural residence district at thirty-five miles an hour and R.L., c. 119, s. 29, which provides that no person shall operate a motor vehicle at a rate of speed greater than is reasonable under the circumstances. Error is claimed upon the ground that there was no evidence that defendant's speed exceeded twenty-five to thirty miles an hour or that it was unreasonable. R.L., c. 119, s. 29, is declaratory of the common law (Gagnon v. Krikorian,
Exception was taken to the submission of the last clear chance doctrine to the jury. Defendant's truck and load weighed over eight tons and was proceeding upgrade at a speed within which he could have stopped the truck in twenty-five to thirty feet. Defendant testified that he knew of the dangerous driveway and was looking for motor vehicles to come from it. While the defendant said that he did not see the plaintiff until twenty or thirty feet from the driveway, his testimony on that point was not conclusive. Frost v. Stevens,
The motion for a directed verdict is predicated on the propositions that as a matter of law the plaintiff's driver was negligent and the defendant was not negligent. That the motion was properly denied is evident from both the reasoning and result in Shimkus v. Caesar, ante, 286. The plaintiff's driver was not guilty of contributory negligence as a matter of law in coming out of the driveway as he did (Spear v. Penna,
Judgment on the verdict.
All concurred.