117 Me. 120 | Me. | 1918
These cases are of novel impression in this State. They involve the degree of care which the owner and operator of an automobile owes to his invited guest.
N. Webb Thompson, the defendants’ intestate, was a resident of Friendship and the owner and driver of an automobile. He invited four ladies to take a ride with him for pleasure from Friendship to Thomaston. The invitation was accepted and on the morning of September 2, 1915, they started on the journey. Miss Mitchell sat on the front seat with Mr. Thompson, the other three ladies on the rear seat, Mrs. Avery, the plaintiff, on the left, Miss Morse in the center and Mrs. Pillsbury on the right. They turned from the Friendship road on to Knox Street in Thomaston and in attempting to pass over a grade crossing about one hundred feet from the turn, the automobile was struck by an express train of the Maine Central
Motion.
1. Defendant’s Negligence.
In order to determine whether these verdicts are so manifestly contrary to the law and the evidence that they should be set aside by this court, it is necessary to ascertain the measure of duty which Mr. Thompson, the invitor and the host, owed to Mrs. Avery, the invitee and guest, under the circumstances of this case, in other words the degree of care which he was in law bound to exercise for her protection and safety during this gratuitous transportation. We should first inquire what was the legal relation existing between the parties.
Ordinarily in personal actions the duty which is violated is one of two lands. Either it is one imposed upon the defendant equally with all the world and independent of any act or volition on his part, as for instance the duty of a driver of an automobile toward other travelers on the highway; or it may arise out of contract, either under seal or given for good consideration in consequence of which the defendant has assumed a correlative duty, an illustration of which is the carriage of persons or property for hire. There is, however, a third way in which a legal duty may arise and that is from a gratuitous undertaking on the part of the defendant, a duty voluntarily assumed without consideration, and a duty owed to the plaintiff alone because of the peculiar relations of the parties. The most common instance of this third classification is a gratuitous bailment.
Within this zone, independent of either contract or tort in its larger sense, falls the defendant’s duty and therefore the plaintiff’s right of action in the case at bar. The defendant (using this term for the sake of convenience) had entered into no contract with the plaintiff
The next inquiry is this, to what degree of care and exertion should he be held under these circumstances? Was he bound to convey her safely as would a common carrier? Clearly not. Was he liable for injuries resulting from what has often been termed ordinary negligence, that is a failure to exercise the care of an ordinarily prudent person in the same situation? Or should he be held bound to exercise only a slight degree of care and be liable only in case of reckless and wilful misconduct, what has been often characterized as gross negligence?
There has been much controversy over the use of phrases expressing different degrees of negligence, as slight, ordinary and gross, but it seems to be largely a matter of terminology, and the later decisions while for the most part rejecting the arbitrary distinctions, acknowledge the existence of conditions that increase or diminish the degree of care to be exercised. In Raymond v. Railroad Co., 100 Maine, 529, this court said: “It will be observed that the Courts in discussing the above propositions have used the word negligence, instead of the word care, to express the measure of duty. But confusion has arisen from regarding ‘negligence’ as a positive instead of a negative word. For this reason it is usual to express the duty owed in positive terms by stating what consitutes due care, rather than in negative terms by ■stating what constitutes negligence which is the unintentional failure to perform a duty required by law. ‘Negligence’ is the opposite of ‘due care’. When due care is found there is no negligence. If there is a want of due care then there is negligence. We are inclined to agree with the great weight of judicial opinion that the attempt to divide negligence, or its opposite due care, into degrees will often lead to confusion and uncertainty. It seems to us therefore that the measure of duty owed by parties in the discharge of their mutual relations, would be better expressed by the use of the term negligence if one prefers a negative definition, or due, reasonable or ordinary care, always having reference to the circumstances and conditions with regard to which the terms are used.”
Notwithstanding these antagonistic statements as to definition we doubt not that the two courts from a given state of facts would be apt to reach the same conclusion as to liability. The difference is more verbal than real.
This is illustrated in the analogous doctrine of gratuitous bailments, — what the earlier writers termed a mandate. In Storer v. Gowen, 18 Maine, 174, this court, on the authority of Story on Bailments, stated the law in these words: “In such a case the bailee or mandatary is responsible only for gross negligence,” but added “the care required in a bailment of this kind will depend much upon the nature of the goods delivered. If money is delivered, it is to receive more care than common property.” Restated in Dinsmore v. Abbott, 89 Maine, 373, the doctrine appears as follows: “The burden was upon the plaintiff, whatever the form of action, to show a breach of the implied contract of the defendants as gratuitous bailees, viz: to use ordinary care in keeping the property and to deliver it upon demand, if after using due care, they should have it in their possession.” The language is different in these two opinions but the essential elements of the self-imposed duty undoubtedly remain the same.
Adopting then the modern method of statement we think that the true rule of liability on the part of a voluntary undertaker should be this, that he be required to exercise that degree of care and caution which would seem reasonable and proper from the character of the thing undertaken.
The courts have had occasion to consider the governing rule in. several instances as between invitor and invitee in case of gratuitous transportation.
In Moffat v. Bateman, L. R., 3 P. C., 115, the plaintiff was being conveyed by the defendant in his carriage to perform certain work on the defendant’s house. The plaintiff claimed that because of negligent driving the king bolt of the carriage broke, the horses bolted, the carriage was overturned and he himself was injured. The court held that as there was no evidence of gross negligence the plaintiff could
In Mayberry v. Sivey, 18 Kan., 291, the plaintiff was an invited guest of the defendant who was driving the team. Against the protestations of the plaintiff and his request to alight, the defendant recklessly raced his horse and a collision ensued. The court held that the defendant was liable, all allegations being proved except a wilful intention on the part of the defendant to throw the plaintiff from the carriage.
In Siegrist v. Arnot, 10 Mo. App., 197, the plaintiff was an impliedly invited guest in the carriage owned by the defendant, a livery stable keeper, but driven by his servant. The court in holding the defendant liable for injuries caused by the horses running away, laid down the rule thus, through Judge Thompson, author of the learned treatise on negligence: “He (the defendant) was bound to bestow upon the undertaking which he had voluntarily assumed, that degree of care-which a prudent man having regard to his social obligations would have bestowed upon it; which, escaping from all definition, simply means that degree of care which a jury may reasonably say he ought to have bestowed under the circumstances and considering that human life was in his keeping.....The governing principle here is that whenever a person undertakes an employment which requires care and skill, whether he undertakes it for reward or gratuitously, a failure to exert the measure of care and skill appropriate to such employment is culpable negligence, and if damages result therefrom an action will lie.”
In Patnode v. Foote, 153 N. Y. App. Div., 494, the plaintiff had been subpoenaed by defendant as a witness in an action in which defendant was a party, and was invited by the defendant to ride with him in his team to the place of trial. In sustaining a verdict for the plaintiff the court say: “There was also evidence, fully warranting the jury in finding that the defendant drove at a reckless speed, against plaintiff’s protest, and the collision was due to defendant’s carelessness. A
In Pigeon v. Lane, 80 Conn., 237, the trial court directed a verdict for the defendants on the ground that the plaintiff and the servant of the defendants through whose want of due care the plaintiff was injured, were fellow servants. The Supreme Court of Errors reversed this ruling and said, obiter, that if the plaintiff was injured while riding upon the sleigh as a mere licensee the defendants could be liable only for her active negligence in causing the injury by which the danger of riding upon the conveyance was increased or a new danger created.
In Beard v. Klusmeier, 158 Ky., 153, 164 S. W., 319 (314), the defendant was racing at midnight with another automobile. The .plaintiff protested and begged to be allowed to alight. The defendant refused and the accident followed. The court held the defendant liable and declared it to be the defendant’s duty upon inviting the plaintiff to ride as a guest in his automobile to use ordinary care not to increase the plaintiff’s danger nor to create any new danger such as by fast and reckless driving.
In Fitzjames v. Boyd, 123 Md., 497, 91 At. 547 (1914), the accident was caused by the defendant, against the protest of the plaintiff, attempting to pass another automobile upon a slippery pavement at a rapid pace. The car skidded, struck a telegraph pole, and the plaintiff, an invited guest, was thrown out and injured. The action was
In Perkins, Admr., v. Galloway, 194 Ala., 265 (1915), 69 So., 875, the rule was expressed as follows: “The express or implied duty of the owner and driver to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of that method of travel. He must exercise the care and diligence which a man of reasonable prudence, engaged in like business, would exercise for his own protection and the protection of his family and property, a care which must be reasonably commensurate with the nature and hazards attending this particular mode of travel. Failing in this duty he will be liable to the occupant or guest of the car for injuries the result of such carelessness or lack of diligence.”
The last word in Massachusetts is to be found in Massaletti v. Fitzroy, 228 Mass., 487. The facts in that case were that while staying with the defendant as her guest the plaintiff went out with the defendant in her automobile driven by a chauffeur who was furnished by the owner of the garage where the car was kept. The machine was overturned and the plaintiff injured. The jury found that while driving the machine the chauffeur was the defendant’s servant, that the accident was caused by his negligence, but the plaintiff did not contend that the chauffeur was guilty of gross negligence. Thereupon the presiding Justice directed a verdict for the defendant, and this ruling was sustained by the Law Court on the authority of West v. Poor, 196 Mass., 183, where it was held that a defendant who invites a plaintiff to ride gratis in his carriage is liable to the same extent that a gratuitous bailee is liable, that is only for so called gross negligence. The opinion most learnedly discusses the question of degrees of negligence, as we have before observed, and also the authorities both in England and this country upon the question of gratuitous bailments, overruling Gill v. Middleton, 105 Mass., 477, where it was held that a landlord who gratuitously undertook to make repairs could be held responsible for lack of ordinary care. In conclusion the court said: ‘ ‘Approaching the question apart from authority we are led to the same conclusion. Justice requires that the one who undertakes to perform a duty gratuitously should not be under the same measure of obligation as one who enters upon the same undertaking for pay. There is an inherent difficulty
The foregoing decisions give expression in varying forms to substantially the same fundamental principle and lead here to the same . essential inquiry, viz: did the defendant exercise toward his invited guest that degree of care and diligence which would seem reasonable and proper from the character of the thing undertaken? The thing undertaken was the transportation of the guest in the defendant’s automobile. The act itself involved some danger because the instrumentality is commonly known to be a machine of tremendous power, high speed and quick action. All these elements may be supposed to have been within the contemplation of the guest when she accepted the invitation. In a sense she may be said to have assumed the risks ordinarily arising from these elements, provided the machine is controlled and managed by .a reasonably prudent man who will not by his own want of due care increase their danger or subject the guest to a newly created danger. In other words we conceive the true rule to be that the gratuitous undertaker shall be mindful of the life and limb of his guest and shall not unreasonably expose her to additional peril. This would seem to be a sane, sound and workable rule, one consistent with established legal principles and just to both parties. It leaves the determination of the issue to the jury as a question of fact.
Tried by this test we are constrained to say that the verdict of the jury fastening liability upon the defendant in the case at bar is not so manifestly wrong that it should be set aside. His conduct bordered upon if it did not actually reach recklessness. It did not evince that regard for the safety of his passengers which is required. The jury were warranted in believing that he was familiar with the premises and knew that he was approaching a grade crossing, a place of acknowledged danger. The whistle had been blown and the automatic
2. Plaintiff’s alleged contributory negligence.
The plaintiff cannot be held guilty of contributory negligence, as is earnestly urged by the defendant. The negligence complained of was the act, not of the railroad company, but of the defendant in the management of the machine, and no act or failure to act on the part of the plaintiff can be deemed the proximate cause of the accident. She had neither direction nor control of its operation. That was absolutely within his power. She neither consented to nor acquiesced in the particular management or mismanagement that caused the tragedy. She was a stranger in the locality and was sitting quietly on the back seat, in full and justifiable reliance upon his capacity as a competent driver. She was not inattentive because she was apparently the first to perceive the train and at once gave warning. He heard her exclamation. Had he heeded it and stopped, as he might have done, all would have been well. Instead, he hesitated, then put on speed and plunged rashly into obvious peril, into the very jaws of death. She was powerless to prevent it. Clearly, no blame can be attached to the plaintiff.
3. Damages.
The damages awarded Mrs. Avery while large do not impress us as so extravagant or exorbitant as to require reduction by the court. Mrs. Avery was twenty-eight years old. Her injuries were serious. Objectively they consisted of a scalp wound on the head and a fractured pelvis. Subjectively they consisted of a nervous shock or collapse with its attendant ills which still remain with her. She is suffering from a retroverted uterus, and seven months after the
Mr. Avery’s verdict was $1,483.33. Considering the amount of his legitimate cash disbursements and all other elements, we think one thousand dollars would be ample Compensation for all damages sustained by him.
Exceptions.
The plaintiff introduced the locomotive engineer who testified that at the time and place of accident the train was running at the rate of eight or ten miles an hour. He further testified that that was his usual speed on that train in approaching that crossing, and it was necessary that the train should not be running at a greater speed at that point in order to make its stop at the station which lies beyond. Another witness, a bystander testified .that he did not think the train was going very fast, not faster than it usually did when it came into the station.
The defendant introduced as a witness, a civil engineer, who was asked this question, “Have you timed a train making the ordinary stop at the station in Thomaston to know whether it could make its ordinary stop at a rate of more than ten miles an hour on Knox Street?” To the exclusion of this interrogatory exception was taken.
There was no error in this ruling. At best the answer could only serve to contradict the locomotive engineer on an immaterial point, his opinion as to the limit of speed of his train at the crossing in order to make the stop at the station. It did not reach the actual speed at which the train was moving at the time of the accident and on that point whether the train was going ten miles an hour or faster, the act of the defendant in attempting to cross its path would have been equally reprehensible. Moreover the experimental observations which the witness was asked to narrate were made at a subsequent date, not confined to this particular train, and were clearly within the excluding rule of res inter alios acta.
In the action brought by Edna Avery the motion and exception are overruled.
In the action brought by A. Ferdinand Avery, the exception is overruled and the motion sustained unless the plaintiff within thirty days from the filing of the certificate of decision files a remittitur of the amount of the verdict above $1,000. If such remittitur is filed, motion overruled.
So ordered.