## Facts

- The estate administrator brought a wrongful-death action under New Hampshire law against Robert K. Phinney and Phinney’s employer, Postage Meter Company.
- At dusk on October 11, 1938, the decedent rode on a two-horse lumber wagon on a straight, generally level rural highway (U.S. Route 3) toward Concord, New Hampshire.
- A car driven by Humphrey approached the wagon from the rear, failed to see it in time, swerved, and struck the wagon’s left rear wheel.
- The impact caused the decedent to fall from the wagon into the roadway, where he lay in the lane of travel.
- Phinney, driving in the course of his employment, followed Humphrey at about 30–35 mph and about 50–60 feet behind.
- Phinney first perceived the danger when Humphrey suddenly maneuvered, revealing the wagon and the decedent; Phinney had at most about two seconds to respond before reaching the decedent.
- Phinney’s car ran over the decedent, causing death.

## Issues

1. Whether, under New Hampshire negligence law, Phinney was negligent in failing to avoid the decedent when the hazard appeared suddenly, leaving only seconds to react.
2. Whether the “sudden emergency” doctrine applied, or whether Phinney’s prior driving (speed, following distance, lookout) contributed to creating the emergency and barred reliance on that doctrine.
3. Whether Postage Meter Company could be liable under respondeat superior if Phinney committed no actionable negligence.

## Decision

- The First Circuit affirmed the judgment for Phinney and the directed verdict for Postage Meter Company.
- Phinney was not negligent as a matter of law because he was confronted with a sudden emergency not of his own making and had no time for deliberate choice.
- Because the employer’s liability was derivative and Phinney was not negligent, Postage Meter Company could not be held liable.

## Legal Principles

- Under New Hampshire law, when a driver, without fault, is suddenly confronted with an emergency leaving no time for reflected decision, the driver’s instinctive response is not negligent if it falls within what an ordinarily prudent person might do in the same circumstances.
- The sudden-emergency doctrine does not protect a driver whose own negligence created or materially contributed to the emergency.
- A driver may ordinarily assume other motorists will exercise due care and is not required to anticipate highly unusual chains of events absent warning circumstances.
- Respondeat superior does not impose liability on an employer when the employee committed no actionable tort.

## Conclusion

The court held that the evidence showed a sudden, externally created peril that gave Phinney only seconds to react, making negligence unsupportable as a matter of law; the employer likewise had no derivative liability absent employee fault.


Whicher v. Phinney, 124 F.2d 929 (1st Cir. 1942)