The claim that the testimony of McLennon as to the space within which the team could be stopped did not apply to the situation at the place of accident, if well founded, cannot affect the result. One Magill saw where the accident occurred and testified that the team could be stopped there "almost immediately," "within three or four feet."
Gillis was called as a witness by the plaintiff, and testified that he stopped as quickly as he could. From this it is argued that upon the proof produced by the plaintiff no fault upon Gillis' part could be *Page 494 found. But there was other evidence to the effect that the team could reasonably have been stopped in season to prevent the accident. The jury were at liberty to believe this evidence, and if they did they might find Gillis in fault. In reaching that conclusion they might find either that his testimony that he stopped as soon as he could was untrue, or, if it was true, that his conduct, although it expressed his best judgment and ability, still failed to measure up to the standard of average care. Warren v. Railway, 70 N.H. 352; Carney v. Railway, 72 N.H. 364; Garland v. Railroad, 76 N.H. 556, 564.
The argument that Gillis had to choose between the danger of pulling the horses back upon the boy and that of the wheels striking him would deserve consideration on the issue of fact involved but for the testimony of Gillis himself that he at once tried to stop. If upon this evidence the jury could be permitted to find that he hesitated for the reason suggested, they certainly could find that he did not do so. It is true, as the defendant argues, that if there was delay the reason for it must be sought. The various suggestions offered may or may not be of weight with the jury who are to determine the fact. The important point here is that no reason exonerating Gillis from fault for the delay is conclusively shown to exist. In this state of the proof the jury could find that no such reason did exist, and that the delay was due to Gillis' failure to use reasonable care to act promptly.
Former result affirmed.
WALKER, J., was absent: the others concurred. *Page 495