Marshall v. Nugent

MAGRUDER, J.

On the morning of December 17, 1951, a Chevrolet car owned and operated by Walter G. Harriman was proceeding on a public highway from Colebrook, New Hampshire, in a southerly direction bound for North Stratford, New Hampshire. Marshall was riding as a passenger in the front seat of the Chevrolet. Harriman was a son-in-law of Marshall and also his employee in an insurance business conducted under the name of the Frank E. Marshall Agency. They were bound for North Stratford to enable Marshall to keep a business appointment.

As Harriman was driving his car on the right-hand side, or westerly lane of the highway, at 30 to 35 miles per hour, he approached a curve in the road. At this point the highway ran uphill and curved rather sharply to Harriman’s right. The curve was heavily banked, the east side being higher than the west side. On the day in question the road was covered with hard-packed snow and ice and was quite slippery. Proceeding in the opposite direction, i.e., northerly and headed for Colebrook, was a heavy oil truck owned by Socony-Vacuum Oil Co., Inc., and driven by its servant, Warren K. Prince, undoubtedly then in the scope of his employment. Upon ample testimony the jury were warranted in finding that after the oil truck loomed over the crest of the hill it ‘cut the corner’ by swinging over to the westerly side of the highway (to Prince’s left) and proceeded down the banked curve in that manner. In this situation the truck and the Chevrolet, then approximately 300 ft. or more apart, were headed for a collision. There was credible evidence that Harriman let up on his accelerator and blew his horn, but as the truck did not get back promptly to its side of the road Harriman turned to the right into the snowbank at the west side of the road to slow down; the Chevrolet went into a skid for about 50 ft. and came to a stop completely off the highway on the westerly side and at right angles with the road.

Prince stopped his oil truck on the easterly, or to him the right-hand, side of the highway, about opposite the stalled Chevrolet. Harriman and Marshall got out of the car. Prince inquired if they were ‘okay’ — which they were at that time — and offered to yank the Chevrolet back into the highway if Harriman had a chain.

At this time the oil truck, blocking as it was the eastern lane of the highway, was stopped in a dangerous place. The danger was not with reference to southbound traffic, for the Chevrolet and the stopped truck were visible to such traffic for a straightaway distance of 1200 to 1500 ft. Rather, the danger was with reference to northbound traffic. Drivers in cars proceeding in a northerly direction could not see the truck standing in the ‘blind spot’ below until they arrived almost at the crest of the hill, when they would realize that there was not room to pass the truck on the right-hand or easterly side, and the risk was obvious that in the existing weather conditions they might go into a skid while attempting to swing over to the left on the banked curve in order to pass between the Chevrolet and the truck. Also there would be danger from northbound traffic during the blocking of the highway by the anticipated operation of towing the Chevrolet back into the highway.

Prince, who was very familiar with this particular portion of the highway, recognized the danger inherent in the situation, for he remarked to Messrs. Harriman and Marshall that his truck was stopped in a rather dangerous position and that someone ought to go up the grade to warn any approaching northbound traffic.

In response to this obviously reasonable suggestion from Prince, Marshall undertook to go up the hill to warn any cars that might be approaching the crest in a northerly direction. Harriman continued the operation of getting out his chain and affixing it to the spring shackle of his car. Meanwhile, Prince let the truck stand still on the east side of the highway, when it might have been safer to have pulled over in a matter of moments to the other side of the highway to await the towing operation. Having proceeded southerly for perhaps 75 or 80 ft., walking on his right-hand side of the highway, about 4 ft. from the snowbank on the westerly side, Marshall perceived coming over the crest of the hill a car driven by Robert H. Nugent. This car would have presented no danger to Marshall if it could have proceeded on its right-hand or easterly lane, but this was impossible because the oil truck was blocking this lane. Marshall waved his arms in warning. Nugent turned his car toward the left. It soon went into a skid, crossing to the left-hand side of the banked curve, crashing into a plank guard fence on the westerly side of the highway, and immediately thereafter striking and severely injuring Marshall. It all happened so quickly that Marshall was unable to get out of the way. Nugent’s car continued more or less out of control until its front bumper guard struck and dented the rear fender of Harriman’s stalled Chevrolet, and there Nugent’s car stopped. The injury to Marshall occurred a very short time, perhaps a minute or two, or maybe less, after Marshall had started up the hill in response to Prince’s suggestion.

The situation in the case at bar is to be sharply distinguished from that where a plaintiff enters into a voluntary relationship with a defendant, as by coming on his premises as a licensee, well aware of a risk incident to his presence there. There the plaintiff is barred, not by contributory negligence as an affirmative defense to a prima facie liability, but because the land occupier has not been guilty of any breach of duty owed to the licensee. The distinction is elaborated more fully in a Comment by Professor Seavey.

The adjective ‘proximate’, as commonly used in this connection, is perhaps misleading, since to establish liability it is not necessarily true that the defendant’s culpable act must be shown to have been the next or immediate cause of the plaintiff’s injury. In many familiar instances, the defendant’s act may be more remote in the chain of events; and the plaintiff’s injury may more immediately have been caused by an intervening force of nature, or an intervening act of a third person whether culpable or not, or even an act by the plaintiff bringing himself in contact with the dangerous situation resulting from the defendant’s negligence. Therefore, perhapas, the phrase ‘legal cause’ is preferable to ‘proximate cause’; but the courts continue generally to use ‘proximate cause’, and it is pretty well-understood what is meant.

When an issue of proximate cause arises in a borderline case, as not infrequently happens, we leave it to the jury with appropriate instructions. We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man — the prevalent sense of the community — as to whether the causal relation between the negligent act and the plaintiff’s harm which in fact was a consequence of the tortious act is sufficiently close to make it just and expedient to hold the defendant answerable in damages. That is what the courts have in mind when they say the question of proximate causation is one of fact for the jury. It is similar to the issue of negligence, which is left to the jury as an issue of fact. Even where on the evidence the facts are undisputed, if fair-minded men might honestly and reasonably draw contrary inferences as to whether the facts do or do not establish negligence, the court leaves such issue to the determination of the jury, who are required to decide, as a matter of common-sense judgment, whether the defendant’s course of conduct subjected others to a reasonable or unreasonable risk, i.e., whether under all the circumstances the defendant ought to be recognized as privileged to do the act in question or to pursue his course of conduct with immunity from liability for harm to others which might result.

Whatever may be the New Hampshire law in the foregoing respect, the case at bar presents a quite different situation. Plaintiff Marshall was a passenger in the oncoming Chevrolet car, and thus was one of the persons whose bodily safety was primarily endangered by the negligence of Prince, as might have been found by the jury, in ‘cutting the corner’ with the Socony truck in the circumstances above related. In that view, Prince’s negligence constituted an irretrievable breach of duty to the plaintiff. Though this particular act of negligence was over and done with when the truck pulled up alongside of the stalled Chevrolet without having actually collided with it, still the consequences of such past negligence were in the bosom of time, as yet unrevealed.

As we have indicated, the extra risks created by Prince’s negligence were not all over at the moment the primary risk of collision between the truck and the Chevrolet was successfully surmounted. Many cases have held a defendant, whose negligence caused a traffic tie-up, legally liable for subsequent property damage or personal injuries more immediately caused by an oncoming motorist. This would particularly be so where, as in the present case, the negligent traffic tie-up and delay occurred in a dangerous blind spot, and where the occupants of the stalled Chevrolet, having got out onto the highway to assist in the operation of getting the Chevrolet going again, were necessarily subject to risks of injury from cars in the stream of northbound traffic coming over the crest of the hill. It is true, the Chevrolet car was not owned by the plaintiff Marshall, and no doubt, without violating any legal duty to Harriman, Marshall could have crawled up onto the snowbank at the side of the road out of harm’s way and awaited there, passive and inert, until his journey was resumed. But the plaintiff, who as a passenger in the Chevrolet car had already been subjected to a collision risk by the negligent operation of the Socony truck, could reasonably be expected to get out onto the highway and lend a hand to his host in getting the Chevrolet started again, especially as Marshall himself had an interest in facilitating the resumption of the journey in order to keep his business appointment in North Stratford. Marshall was therefore certainly not an ‘officious intermeddler’, and whether or not he was barred by contributory negligence in what he did was a question for the jury, as we have already held. The injury Marshall received by being struck by the Nugent car was not remote, either in time or place, from the negligent conduct of defendant Socony’s servant, and it occurred while the traffic mix-up occasioned by defendant’s negligence was still persisting, not after the traffic flow had become normal again. In the circumstances presented we conclude that the district court committed no error in leaving the issue of proximate cause to the jury for determination.

Of course, the essential notion of what is meant by ‘proximate cause’ may be expressed to the jury in a variety of ways. We are satisfied in the present case that the charge to the jury accurately enough acquainted them with the nature of the factual judgment they were called upon to exercise in their determination of the issue of proximate cause.

We find no substantial or prejudicial error at the trial which would necessitate our overturning of the verdict in favor of Nugent.