Gilbert v. Burque , 72 N.H. 521 ( 1904 )

Both the plaintiff and the defendant were rightfully attempting to pass over the street. In a general sense, their rights and obligations were equal. Each was bound to exercise a reasonable degree of care under the circumstances to avoid injuring the other, while both were rightfully using the public highway. Neither was bound to assume that the other Would omit to perform the duty of careful conduct. Until within a few seconds of the time of the collision, the occupation of the street by both parties was not attended with any special danger. If the plaintiff had seen the defendant when he drove from West Pearl street onto and nearly half way across Main street, there was nothing, as disclosed by the evidence, to indicate to the plaintiff that their teams would probably collide, or to suggest to her the advisability of adopting precautions to avoid such a result. According to the defendant's testimony, his horse was walking and was under perfect control until he reached the car track. It does not appear that up to that time her situation was rendered dangerous, or that she was under any obligation to change her course or to take any other precaution to avoid the danger of a possible collision with the defendant's team; so that, until the defendant's horse began to show signs of uneasiness, or to advance at a more rapid rate, the plaintiff's failure to observe his team is immaterial. Waldron v. Railroad, 71 N.H. 362, 366. It does not prove contributory negligence on her part, or show that she was not in the exercise of due care. It does not preclude the natural inference that her conduct. was such as men of ordinary prudence would adopt under the circumstances.

But it is urged that if she had been looking in the direction of West Pearl street she would have seen the defendant in time to have avoided the collision, which was imminent when his horse began to increase his speed. This conclusion, however, is one of fact; and the verdict of the jury based on the opposite conclusion must be sustained, unless, in the judgment of the court, reasonable men acting as jurors could not differ upon the evidence as to the truth of the defendant's contention. When, as the defendant claims, his horse started up in order to cross the track before the approaching car, he was but a short distance from the plaintiff's team, which was going north. If the plaintiff had been looking at the defendant, at that time, it may have been reasonable for her to assume that he would turn to the right and avoid all danger, rather than that he would turn to the left and attempt to drive his team into the narrow passage between her team and the car. Unlike a car or locomotive, his team was capable of being driven in more than one course. Its direction was not necessarily in a prescribed line. Shapleigh v. Wyman, 134 Mass. 118, 119. And as, an instant before the collision, the liability of its occurrence was not apparent, it was competent for the jury to find that the plaintiff was then in the exercise of due care for her own protection. Her position was not dangerous until the defendant's acts suddenly rendered it so. The situation did not present "a case of one going into danger without exercising care, but of one occupying a position which his observation told him was safe unless he was carelessly run upon." Gahagan v. Railroad, 70 N.H. 441, 449. Whether, during the very short space of time that elapsed after the defendant's horse started up and before the collision, the plaintiff could have avoided the accident by stopping her horse or by turning to the right, and whether failure to resort to these or other means of self-protection was the proximate cause of her injury, are evidently questions upon which reasonable men might differ, and were therefore properly submitted to the jury. The defendant's proposition is, in effect, that it was the plaintiff's duty to have been looking at his team when he increased its speed; to have apprehended that he would suddenly turn to the left, and that, if he did, an accident would happen unless she did something to avoid it. It is consequently argued that her failure to instantly resort to some self-protecting expedient, in view of the sudden acts of the defendant, proves her want of care beyond reasonable controversy — a statement which contains its own refutation. It was legally competent for the jury to find that she was not in fault in the management of her team, and that she sustained the burden proving that she was exercising due care. Hutchins v. Macomber, 68 N.H. 473; Felch v. Railroad,66 N.H. 318, 323.

The evidence was sufficient to justify the finding that the defendant was negligent in the management of his team, and that his negligence in this respect was the proximate cause of the plaintiff's injury. Extended argument in support of this proposition is unnecessary. Whether there is any competent evidence of the defendant's negligence is a question of law, which upon the evidence reported is not open to serious doubt; but the questions whether it is entitled to great or little weight, and what inferences may be drawn therefrom, are exclusively for the consideration of the jury, upon which arguments in this court are necessarily irrelevant.

Exceptions overruled: judgment on the verdict.

All concurred.