173 A. 806
Supreme Court of New Hampshire Hillsborough.
Decided June 28, 1934.
In case for negligence the mere fact that a plaintiff realized that his position was one of danger does not preclude his recovery. Exceptions to argument having been irregularly taken, were overruled. An objectionable part of a misstatement in argument having been corrected, the exception was overruled.
CASE, for negligence. The plaintiff while walking in an easterly direction on the left-hand side of Candia road in Manchester was struck by the defendant’s automobile which was proceeding in the same direction. Second trial by jury of the case reported 86 N.H. 167. Verdict for the plaintiff. Motions for a nonsuit and directed verdict were denied subject to exception. The defendant also excepted to the argument of plaintiff’s counsel to the jury.
A bill of exceptions was allowed by Burque, J.
Chretien Craig (Mr. Chretien orally), for the plaintiff.
O’Connor Saidel (Mr. Saidel orally), for the defendant.
MARBLE, J.
The evidence relating to liability does not differ in any essential respect from that of the former trial. It follows that the court did not err in denying the motion for a nonsuit and directed verdict. Remick v. Company, 82 N.H. 182, 183; Haakensen v. Company, 77 N.H. 588. The plaintiff’s admission that he heard the car approaching from behind was merely a circumstance to be considered on the issue of his care. Other cars had gone by him in safety and he was not bound to anticipate that the defendant’s car would not do so. As stated in the earlier opinion, the mere fact that he realized his position was a dangerous one did not preclude recovery.
In all but one instance the exceptions to argument were irregularly taken (Tuttle v. Dodge, 80 N.H. 304, 312), and in that instance the objectionable part of the alleged misstatement was promptly and sufficiently corrected (State v. Hale, 85 N.H. 403, 412).
Judgment on the verdict.
All concurred.
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