143 Me. 214 | Me. | 1948
These are general motions for new trials made by the two plaintiffs after verdicts for defendant. The actions were brought by a minor and his father for alleged negligence. The motions are overruled.
The accident happened on November 3, 1945, in the town of Boothbay Harbor, Maine at approximately 10:15 P. M. when an automobile, operated by the defendant, struck and injured the minor plaintiff, Arthur Barlow, who was a pedestrian on the public highway that leads from the town of Boothbay to Boothbay Harbor.
The declaration of Arthur Barlow, the fifteen-year-old minor, and the declaration of Richard Barlow, the father, allege due care and caution on the part of the minor plaintiff, and that the defendant, Robert Lowery, was negligent in that (1) the speed of his automobile was excessive, (2) that he was under the influence of intoxicating liquor, (3) that he failed to have his car under proper control, and (4) that his automobile had defective lights. The plea was the general issue. Jury trial was had at the November term, 1947, of the Superior Court for the County of Lincoln. The two cases were tried together. A verdict for the defendant was returned by the jury in both cases.
The question for decision is, whether the verdicts are manifestly wrong. Eaton v. Marcelle, 139 Me. 256; Huntoon v. Wiley, 142 Me. 262; 49 Atl. (2nd) 910.
From the evidence presented a jury might find, and in these cases, undoubtedly did find, that:
On one of the main highways in Lincoln County — a highway that is macadamized and twenty-two feet wide, with gravelled shoulders three feet wide on both sides — the minor
The three boys were close together, abreast, and they were “walking along talking to each other.” The minor plaintiff stated that he “heard no car at all until just before I was struck,” but he had noticed “a small flicker of light between my feet,” and had continued on and “never paid any attention to it.” This plaintiff further said “we was just walking along and Ed was talking, and he never talked very loud anyway. I never heard anything till the car got us, right on top of us, because I was listening paying more attention to Ed.” The plaintiff testified that he was the middle boy, and had his right hand on Paul Little’s left shoulder, and his left hand on Edward Andrews right shoulder.
The evidence for defendant was to the effect that he was driving at a rate of thirty-five or forty miles per hour, when he saw the boys who were nearly in “the middle of the highway” twenty-five to thirty feet ahead. The defendant placed the point of impact eleven feet from the guard rail fence. The defendant “turned out from them,” applied his brakes, and did not know he had struck anything, although he heard a “tick,” and one of his passengers “hollered.” He stopped some distance from the place of accident and went back. The Andrews boy (who died) and the injured plaintiff Barlow, were then “on” or “near” or “against” posts of the guard rail.
In these actions, the burden to prove the negligence of the defendant, and to prove that no lack of due care contributed to the injuries, was upon the plaintiffs. Baker v. Transportation Co., 140 Me. 190; Rouse v. Scott, 132 Me. 22. Also, where a father is plaintiff, seeking to recover for expenses and loss of minor’s services, if there is contributory negligence on the part of the son it bars the father from recovery. Bonefant v. Chapdelaine, 131 Me. 45, 51. It should appear from the circumstances that the defendant was negligent and that the plaintiff was using due care. “If the result was produced by a commingling of the negligences of the two parties, the plaintiff cannot recover.” Lesan v. Railroad Co., 77 Me. 85, 87; White v. Michaud, 131 Me. 124, 128; Eaton v. Ambrose, 133 Me. 458. The standard of measurement for both parties is, therefore, the care and caution exercised by a person who is ordinarily prudent and thoughtful. One who falls below this level, when in dangerous circumstances, is negligent. The law does not expect the impossible, but it does expect ordinary or reasonable care.
If the jury believed the testimony of the witnesses for the plaintiffs, there was evidence of defendant’s negligence. The negligence of the defendant might even be inferred from the defendant’s own testimony. The defendant’s contentions, however, that the minor plaintiff and his companions were walking at night in the center of a right-hand
It was decided early in the history of this state that a person has the right to use the highway as a foot passenger, and that to be on the highway is not, alone and of itself, negligence as a matter of law. The question of due care is to be determined from all circumstances. Coombs v. Purrington, 42 Me. 332; Cole v. Wilson, 127 Me. 316. The pedestrian, however, must be “most vigilant” for his own safety, if he sees fit to accept “the obvious hazard of the highway.” Cole v. Wilson, 127 Me. 316, 320; Tibbetts v. Dunton, 133 Me. 128.
It is well known that if the highway pedestrian is not dressed in bright clothing and walks without a light, it is often impossible for him to be distinguished after dark, when beyond the distinct range of headlights. The hazard of the highway becomes at certain times, and under some circumstances, a suicidal peril. Due care on the part of the night highway pedestrian may demand that he frequently look for and listen for approaching danger and, if necessary, to promptly leave the way entirely free for motor traffic. Ordinary care may sometimes require that he walk on the left-hand side, in order to better see and avoid approaching cars. He must indeed be vigilant for his own safety when he is walking on, or even too near, the right-hand travelled portion of a way with his back to oncoming vehicles.
The plaintiffs, in the brief of counsel, deny that there was contributory negligence on the part of the minor plaintiff, but they say that if the evidence warrants a finding of “some negligence” on the part of the plaintiff, then the jury verdict is manifestly wrong, in that it “does not follow the law of last clear chance.”
The “doctrine of the last clear chance,” or “the doctrine of discovered peril,” is recognized in Maine, and may or may
The plaintiff’s brief, in discussing last clear chance, calls the court’s attention to one case only, — Arnold v. Owens, 78 Fed. (2nd) 495, where the doctrine is considered, but many statements therein do not agree with Maine decisions. In the Arnold case the plaintiif was on the right shoulder of the road. She was not on the travelled portion of the highway. The Circuit Court of Appeals for the Fourth Circuit held that the jury should be instructed that the defendant was liable if the driver of the truck saw or should have seen that the plaintiff was in a position of danger in
The evidence here was conflicting, as in nearly all automobile actions, and where there is a conflict in testimony the verdict of a jury will not be disturbed, if it is supported by evidence that is credible, reasonable and consistent with the circumstances and probabilities of the case, so as to afford a fair presumption of its truth. Jannell v. Myers, 124 Me. 229. The weight and value of evidence depend on its quality, and not on the number of witnesses. Bennett v. Hathorn, 125 Me. 513; Ladd v. Bean, 117 Me. 445. Also, when there are two arguable theories, and both are properly sustained by evidence, the Law Court is without authority to act. “It is only when a verdict is plainly without support that a new trial on general motion may be ordered.” Young v. Potter, 133 Me. 104, 108; Mizula v. Sawyer, 130 Me. 428, 430.
The burden is on the moving party to show that the adverse verdict is clearly and manifestly wrong. Dube v. Sherman, 135 Me. 144; Perry v. Butler, 142 Me. 154; 48 Atl. (2nd) 631; Jannell v. Myers, 124 Me. 229. This is true even though it may seem to the Law Court that the evidence as a whole preponderates against the jury finding. “Our power is limited to decisions of the question whether the verdict is so plainly contrary to the evidence that manifest
After a careful study of the complete record of the trial the court cannot say that in these verdicts there is “clear” or “manifest” error.
Motion for new trial overruled in each case.