The defendant urges that in leaving the intestate to go home unaided it had no notice, or reason to anticipate, that harm would be done. It claims that its only notice was of a sick headache, which indicated no need of aid.
If judicial notice may not be taken of the fact that a sick headache is not an original source of trouble but derivative from other trouble, it may at least be found that it would inform ordinary men as a symptom of some trouble which might be so serious as to make walking unaided unsafe. The headache was severe enough to induce the foreman to have the intestate taken home, and when she objected, he insisted on his opinion that she had better go. On the way she was so sick as to require the driver to stop in order to obtain relief. There was accordingly notice of an abnormal condition, although not of its nature and character. Something was the matter with her, which might or might not be serious, and which might or might not make her travel unaided unsafe. Knowledge to that extent might be charged to the defendant. Its ignorance of the nature of *Page 276 her trouble was some notice that it might be serious and that leaving her to go home unaided might result in injury. Some probability of such result might be found.
". . . `The question is not whether the damage was foreseen or foreseeable, but whether it in fact resulted as a direct consequence of the defendants' act.' . . . Upon the question whether the defendant has been guilty of negligence, the rule of reasonable anticipation applies . . . But when his guilt has been established, the rule has no application upon the issue of damages." Bowley v. Duca, 80 N.H. 548, 552.
For a person to be careless it is not necessary that damage as more rather than less probable result should be anticipated. "As form and expression of due care, anticipation is a precautionary consideration of what may happen in a situation for which the party is under responsibility. . . . Anticipation is not confined to expectation." Kenney v. Len,81 N.H. 427, 428. Danger consists in the risk of harm as well as the likelihood of it, and a danger calling for anticipation need not be of more probable occurrence than less. If there is some probability of harm sufficiently serious that ordinary men would take precaution to avoid it, then failure so to do is negligence. That the danger will more probably than otherwise not be encountered on a particular occasion does not dispense with the exercise of care. One who crosses a railroad track may not reasonably anticipate that a train will in fact be met, but by reason of the risk that one may be, he is called upon to do what is reasonably required to find out. In going around a sharp turn on a highway where the view is obstructed, a driver may be careless towards opposite travel in speed or other ways, though the probabilities may be against meeting anyone. If the chance is so great that ordinary men would drive differently, then he is careless not to do so.
One may be careless because he fails to guard against consequences which are probable only under conditions as to the existence or absence of which he is in ignorance. In Guevin v. Railway, 78 N.H. 289, a husband was allowed to recover for loss of consortium caused by negligent injury to his wife. As to the plaintiff the defendant's negligence was in failing to anticipate, not that his wife was, but that she might be, married.
While "the likelihood or unlikelihood of a future happening is the turning point" as the test of duty to anticipate (Derosier v. Company,81 N.H. 451, 463), this does not mean that the chances in favor of the happening must exceed those against it. The test *Page 277 is not of the balance of probabilities, but of the existence of some probability of sufficient moment to induce action to avoid it on the part of a reasonable mind. One may be careless in shooting at an object more probably an animal and less probably a human being, if the doubt about it is sufficient to induce the ordinary man to refrain from shooting.
Whether, in the discharge of the undertaking to take the intestate home, ordinary men would see that she was aided in completing her journey under the circumstances, is accordingly an inquiry of fact which the evidence is sufficient to determine affirmatively. If there was likelihood of injury, the duty to use care was not discharged merely because there was a greater unlikelihood of it.
It is true that the intestate voluntarily took the walk unaided. If it was because the driver refused to take her any farther, it would not alter the negligent character of such refusal. If such conduct on her part could be considered negligent, it would not meet the question of the plaintiff's right to go to the jury on the issue of the defendant's care as well as the intestate's. It does not appear that she must have gone home "on her own initiative," in the sense that she was not left by the driver's conduct to her own resources. That the driver did so leave her, and that he was negligent in so doing, may be found.
The defendant's undertaking being to help her home, the undertaking was not necessarily accomplished by leaving the intestate at the foot of the stairs at her home rather than at a place of repose in her home. And if helping her home by conveyance included no incidental aid from the vehicle into her home, her walk on the road might be found a part, if not all, of the overexertion which brought about, with or without other causes, her death. If the climb upstairs was the only overexertion, it would not be unreasonable to say that it was made so by the walk.
Former result affirmed.
PEASLEE, C.J., and BRANCH, J., did not sit: the others concurred. *Page 278