40 Me. 64 | Me. | 1855
If a party seek to recover damage for an injury done to him, by the collision of another’s carriage with his own, on the highway, and shows that he was in the exercise of ordinary care, at the time; or if not using such care, and the want thereof in no wise contributed to produce the injury; but if it was occasioned by the other party in consequence of the want of ordinary care in him, he will be entitled to recover. Kennard v. Burton, 25 Maine, 39 ; Noyes v. Shepherd & al., 30 Maine, 173; Moore v. Abbot, 32 Maine, 46.
That the injury complained of by the plaintiffs, was by a collision of the wagon, driven by the defendant, with the plaintiff’s chaise, there is no controversy.
No want of ordinary care in the female plaintiff, who was driving the chaise at the time of the accident, has been proved, or attempted to be shown, excepting, that as the chaise came down the hill, where the collision took place, it inclined to the right, in the traveled part of the way, so that as it
A party having before him the entire road, free from carriages, or other obstructions, and having no notice of any carriage behind him, in season to stop, or to change his course or position, is at liberty to travel upon such parts of the way as suits his convenience or pleasure, and no blame can be imputed to him. This is properly inferable from R. S., c. 26, § 3.
It was in proof, that Mrs. Foster was driving the chaise at a walk or slow trot down the hill, in company with another lady. The first notice which they had of the defendant’s approach, before the collision, was the noise of a vehicle, like a horse running with a carriage; that there was not time to stop the horse, before the disaster took place; and if he had been stopped, the collision would not have been avoided, and that nothing was heard as having been said by the defendant, till after the collision.
From all the facts in the case, it is very clear, that the horse with the chaise, in which Mrs. Foster and the other lady were riding, was driven with ordinary care, and that neither contributed in the least to produce the injury, by any act or omission, which did not conform to the law.
Has it been shown, that the accident took place, in consequence of any want of ordinary care on the part of the defendant ? It is proved, that when the defendant’s wagon came to the top of the hill, on which the collision occurred, before entering upon any considerable descent in the way, the horse inclined to go to the left, into Broadway, a street tending from the one in which he had traveled, and in which the defendant intended to proceed down the hill; that in the attempt to give him the desired direction, he struck him with the whip, which effected his purpose; that this stroke of the whip was not improper, and was no more violent than was necessary to cause obedience in the horse to the rein; that at the time the horse attempted to go into Broadway, and was brought back to the proper course, he
But Mr. Erost, who was the owner of the horse driven by the defendant, and in the wagon with him at the time, states, that when they were at Broadway, on the top of the hill, they saw two chaises in the way below them, and it was to avoid a collision with them, that the defendant attempted to drive by the chaise of the plaintiff upon the right; and he states, that when he last saw the other chaise it was only two rods below Broadway; and he cannot say, where it was at the time of the collision; that when he first saw it, it was just ahead of that of the plaintiff, but he took no notice of it after the other inclined to the right; and he did not know which way it went, whether it went down the hill, or turned back and went the other way. This evidence, touching the presence of the other chaise, is not confirmed by other witnesses, who had good opportunity of seeing all that took place; but they testify that they saw at the time no other chaise, excepting that of the plaintiff.
By the evidence adduced by the plaintiff, it is quite apparent, that the defendant was wanting in ordinary care at the time of the disaster, in driving the horse; or that the horse himself, if he could not be controlled, when it does not appear that he was frightened, was unsuitable to be used in that place and under the circumstances in proof. The evidence introduced in explanation is unsatisfactory, for such purpose. And when the whole is examined, we think the plaintiffs are entitled to recover.
Defendant defaulted.
In the action John B. Foster v. John Goddard, damages ,$250.
In the action John B. Foster ux. v. John Goddard, •damages $300.