174 A. 783
Supreme Court of New Hampshire Hillsborough.
Decided September 21, 1934.
The law of the road requires that one traveling behind another and desiring to pass him shall turn to the left after the traveler in advance has turned to the right. P. L., c. 90, s. 2. The presiding justice is not bound to inform the jury of any rule of law not applicable to the evidence; and hence a charge applicable to the evidence and embodying the law of the road as above stated was not erroneous because of failure to state that circumstances may sometimes exist which justify the rear traveler in attempting to pass the forward vehicle on the right. The violation of P. L., c. 90, s. 2, is not merely evidence of negligence, and if causal creates liability for ensuing damage.
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TWO ACTIONS, one to recover for personal injuries sustained by Vitale Bouvier, a minor, while riding a bicycle on Canal street in Nashua, the other brought by the mother of Vitale Bouvier to recover for the loss of her son’s services. Trial by jury and verdicts for both plaintiffs. Vitale Bouvier is hereinafter called the plaintiff.
Canal street is a public highway, approximately 42 feet wide, and running in an easterly and westerly direction. At the time of the accident the defendant was driving an automobile west on Canal street. The plaintiff, riding a bicycle, was ahead of him and proceeding in the same direction. Both were on the north or right-hand side of the road. Several cars were parked parallel to the north curb of Canal street, but none were parked on the south side of the street. The evidence tended to prove that the defendant, without warning, attempted to pass the plaintiff on the right and in so doing struck the plaintiff with the left side of his car. There was no traffic on the south or left-hand side of Canal street for some minutes before and after the collision. Further facts are stated in the opinion.
The defendant excepted to the following instruction to the jury: “A person traveling on a highway and desiring to pass another person ahead of him, traveling in the same direction, should give warning and permit the person ahead of him to turn to the right, and should then pass on the left-hand side of the person who is preceding him in the same direction on the highway. That is the law of the road.”
The court further instructed the jury as follows: “If you find a violation of the law of the road had something to do with this accident, then you will bear it in mind, in determining whether there was any negligence on the part of Mr. Allen. Such violation, if you find it to be negligence on his part, of course, would simply establish liability up to that point. However, you have to consider another proposition in the case, which always presents itself in these cases, and that is contributory negligence on the part of the boy.”
A bill of exceptions was allowed by Burque, J.
Robert E. Earley and Philip Stylianos, for the plaintiff.
Devine Tobin, for the defendant.
MARBLE, J.
“If a person traveling on a highway with a vehicle is informed that another person traveling in like manner in the same direction desires to pass him, he shall turn to the right of the center
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of the traveled part of the road, if there is sufficient room on that side to enable him to do so with safety, and shall not wilfully obstruct the passage of the rear team or vehicle upon the other side of the road.” P. L., c. 90, s. 2.
This statute was enacted after the decision in Clifford v. Tyman, 61 N.H. 508, which held that the rear traveler might pass to the front by turning either to the right or left whenever he could do so in safety, with the exercise of ordinary care.
The presiding justice interpreted the statute correctly. The duty of the rear traveler to pass on the left of the traveler ahead, once the latter has turned to the right, is plainly implied from the language of the act. The suggestion that “the legislature saw fit to dictate the conduct of only the preceding vehicle” ignores this implication. The further suggestion that the charge “laid down a strict rule of conduct which must be followed under all conditions” and that the issue was thus “confined within too narrow limits” disregards the undisputed facts.
The court was not bound to inform the jury of any rule of law not applicable to the evidence. Osgood v. Maxwell, 78 N.H. 35, 38, and cases cited. Conceding that circumstances sometimes exist which justify the rear traveler in attempting to pass the forward vehicle on the right (1 Berry, Automobiles, 6th ed., p. 245; 3-4 Huddy, Automobile Law, 9th ed., p. 174), the evidence discloses no such situation here. At the time of the accident the plaintiff was on the right-hand side of the street and from four to six feet north of the center line. The defendant had ample room (at least a width of 25 feet unobstructed) to pass him on the left. No reason for passing on the right is suggested, and the defendant denies that he attempted to do so. The charge, which treated the violation of the statute merely as evidence of negligence, was more favorable to the defendant than the as announced in Johnson v. Railroad, 83 N.H. 350, 353-357, permits.
Exception overruled.
WOODBURY, J., was absent: the others concurred.
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