Elwell v. Barrows Coal Co., Inc.

This is an action of tort charging the defendant with negligence of its servant in so running a motor truck on the public highway in the village of West Brattleboro about nine o'clock in the forenoon of the 29th day of July, 1925, as to cause a collision with the automobile (a Maxwell touring car) then and there owned and being driven by David Crichton, in which the plaintiff's wife, Alice Elwell, was riding as the invited guest of said Crichton, resulting in her injury. It appeared that on the day named David Crichton (a man 44 years old) started from Bennington in the early morning with a party consisting of his wife and two children and Mrs. Elwell to visit Camp Takoda in Richmond, New Hampshire; that the road from Bennington to Brattleboro curves just as it enters the village of West Brattleboro, but, after passing that curve, it runs straight on a course nearly east and west through West Brattleboro. It further appeared that the defendant, Barrows Coal Company, which conducts a coal business in Brattleboro, was, by use of a 1 1/2 ton motor truck, delivering coal at the school house in West Brattleboro; that the driver of the truck, Alfred J. Bell, was defendant's employee taking a load of coal from Brattleboro to said school house which was on the south side of the street — not on any intersecting street. The evidence on the part of the plaintiff tended to show that in so doing the driver of the truck was proceeding near the center, or on his right-hand, or the north side, of the traveled portion of the highway, and consequently *Page 181 it was necessary for him to make a left-hand turn and cross the street to the school house; that the traveled portion of the street along there was 25 or more feet wide, and the view was open and unobstructed for a distance of 150 to 200 feet from the point of collision toward Bennington; that the Maxwell car in which the plaintiff's wife was riding ran into the right-hand side of the truck, as the latter was crossing the street toward the school house, striking it a little back of the middle; that as the Maxwell came round the curve (before mentioned) in the road, the driver of that car saw the truck coming from the opposite direction it being "then probably 300 or 400 feet from the curve," and probably 150 feet or a little more from the place of the accident; that the driver of the Maxwell car was running it on his right-hand side of the road, at a speed of twenty miles an hour, and he saw the truck coming up the highway on his left; that the driver of the truck, before changing its direction or materially slackening its speed, did not signal with bell or horn, nor give warning of his intention so to do with any hand signal; and the driver of the Maxwell did not see nor hear anything indicating an intention by the driver of the truck to change his direction or to cross the road in front of the Maxwell, and the first thing that came to the attention of the driver of the latter car, indicating that the truck was going to pass, or attempted to pass, in front of the Maxwell, was when he noticed the front or engine part of the truck in front of him, but a short distance, probably ten or twelve feet away; that after he first saw the truck coming from the opposite direction; he watched it "going right along all the way," was looking straight ahead; that the truck first veered to its right, and was not seen by the driver of the Maxwell when it turned to the left, because he was looking straight ahead and had no indication that it was going to make the turn; that on discovering that the truck had turned to the left, the driver of the Maxwell applied the brakes to his car just as soon as he could and tried to avoid collision by turning the car to the left, but it was so far over on the right-hand side of the road that it could not be got around far enough to avoid a collision, and it hit the truck on an angle about in the center. The truckman, improved as a witness by the defendant, testified that he began to turn the truck to cross the street to the school house about fifty feet back from the place of crossing; that from where he thus began to turn he observed that the road *Page 182 ahead was clear for a distance, he should say, of four hundred feet; that the speed of the truck up to that time was 15 to 18 miles an hour, but when he neared the place of making the turn he signalled with his left hand, threw his car into second speed — six or eight miles an hour — and continued across the road without increasing that speed; that in making the crossing he was looking where he was going to his left; that he continued on his route until within eight feet, perhaps, when he saw the Maxwell car coming very rapidly, it then being within a hundred feet of him, but he continued, thinking he would get to his point; that the next that occurred the truck was run into by the Maxwell. On cross-examination this witness testified that when the truck was struck, its forward wheels were just off the hard-surface road, and that the rear end of the truck was just about center of the road; that on or about August 12, 1925, he signed a report to the Secretary of State, concerning the accident. "Q. Did you say in that statement this, or substantially this: `On July 29 at nine o'clock a.m. I was going to deliver a load of coal to the West Brattleboro School and was proceeding west on Western Avenue and about to turn to enter the school yard when I saw the Maxwell touring car coming about 150 feet to the west,' did you sign a statement with that in it? A. That is where I saw him. Q. Did you sign a statement with that in it? A. I did. Q. And was that true? A. That is true. Q. And then it is true that you were about to make the turn when you saw the Maxwell car? A. I had made my turn. Q. I will ask you again if you signed a statement on or about the 12th day of August saying substantially that you were about to make the turn to enter the school yard when you saw the Maxwell touring car coming? A. Yes. Q. Was that true? A. That is true." Verdict and judgment for the plaintiff. Defendant brings up the case for review.