145 A. 263
Supreme Court of New Hampshire Sullivan.
Decided March 5, 1929.
In an action for negligently colliding in the highway with the plaintiff’s automobile the question whether under all the circumstances the plaintiff was in the exercise of due care though traveling on the wrong side of the road while endeavoring to extricate his car from a frozen rut was properly for the jury.
CASE, for negligence resulting in damage to the plaintiff’s automobile. Trial by jury. At the close of the evidence, the defendant moved for a directed verdict upon the ground that “no reasonable person can find that the plaintiff was free from contributory negligence.” Upon the defendant’s agreement that the plaintiff should have judgment for $169 if his exception should be sustained, the court (Sawyer, C. J.) granted the motion and the plaintiff excepted. The facts are stated in the opinion.
Howard H. Hamlin and John H. Leahy (Mr. Hamlin orally), for the plaintiff.
Barton Shulins (Mr. Shulins orally), for the defendant.
Page 551
PER CURIAM.
The only question presented by this record is whether the evidence demonstrated conclusively that the plaintiff was at fault. If his testimony was to be believed, he was climbing a slippery hill in second speed, without chains, at a rate of five to seven miles per hour, with his wheels in a frozen rut, as near the right hand side of the road as he could get, with his parking lights burning, when the defendant’s car came very fast around a curve near the top of the hill and crashed into his automobile; when he saw the defendant coming, he tried to get out of the ruts but was unable to do so. The defendant’s evidence with reference to the plaintiff’s conduct tended chiefly to show that the plaintiff was traveling on the wrong side of the road. In this state of the proof, the question of plaintiff’s care was for the jury, and in accordance with the defendant’s stipulation, there must be
Judgment for the plaintiff for $169.
PEASLEE, C. J., was absent.
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