James Colby v. Verne Avery

The plaintiff suffered personal injuries on December 11, 1941, when he was struck by an automobile owned and driven by the defendant on a public highway in Boscawen. The plaintiff attempted vainly to start his truck that morning. It could be found that he and his brother Robert then pushed the truck out of the Colby yard and southerly along the highway a distance of some 150 feet. Failing in this manner to start the motor, they waited for the arrival of the school bus to take Robert to the Penacook High School. The driver of the bus, Edward Bassett, then towed the truck south erly down the highway. After the truck, with the plaintiff at the wheel, had been towed some distance, the motor started, the plaintiff blew his horn as a signal for Bassett to stop, and Bassett did stop. The distance the truck was towed turned out to be a matter of importance in determining the approximate place of the accident. The statement made by the plaintiff to a representative of the defendant's insurer, six weeks after the accident, gave the distance as 150 or 200 feet; but his testimony at the trial eighteen months later gave it as 500 to 600 feet. This discrepancy the plaintiff explained by saying that he had first estimated the distance, but had later viewed the location, and knowing that the accident happened just north of a large stump, was able by pacing to revise his estimate made while he was still in the hospital. The explanation might reasonably be accepted. After the bus and the truck came to a stop, they stood in the westerly lane (their own side) of the highway with their right wheels about one foot off the pavement, if the plaintiff be believed, and one or two feet easterly of the westerly edge of the pavement, if the defendant be believed. The plaintiff and some of his witnesses testified that Colby remained in the truck two or three minutes to warm the motor. He made no such claim in his deposition. The jury might nevertheless have believed his testimony in chief.