126 Me. 558 | Me. | 1928
The plaintiff’s intestate, Arthur H. Sturtevant, while crossing Elm Street in the city of Waterville on the evening of October 23, 1925, was struck by the defendant’s automobile and died without conscious suffering. This action is brought to recover damages under R. S., Chap. 92, Sec. 9.
The case is before this Court on exceptions to the order of the presiding Justice directing a verdict for the defendant. It is the duty of the Court, therefore, simply to determine whether upon the evidence the jury could properly have found for the plaintiff. “If there was evidence which the jury were warranted in believing, and upon the basis of which honest and fair minded men might reasonably have decided in favor of the plaintiff, it is reversible error to take the issue from the jury.” Johnson v. N. Y., N. H. & H. R. R., 111 Maine, 263, 265.
A careful examination of the evidence discloses these facts. Elm Street in Waterville is a heavily travelled main thoroughfare about fifty feet wide at its intersection with Western Avenue coming in from the west. About six o’clock on the evening of October 23, 1925, the plaintiff’s intestate came down Western Avenue with one Alphonse Pelletier and stopped at the edge of the sidewalk in the northwest corner of the intersection: From this point his view up and down Elm Street was practically unobstructed. The defendant was then driving up Elm Street, approaching the intersection from the south. His view ahead in the street, including the sidewalk where the deceased stood, was likewise unobstructed. The plaintiff left the sidewalk and attempted to cross Elm Street and was struck down by the defendant’s automobile, dying without conscious suffering as a result of the collision. These facts are not in dispute.
There is a sharp conflict of testimony, however, upon the question of what actually took place. The companion of the deceased, Mr. Pelletier, was called by the plaintiff, and his account of the accident as stated upon the stand is, that after standing at the sidewalk edge for a few moments the deceased started to walk aerosss Elm Street on the crosswalk while the witness turned down Elm Street. He says, that attracted by the sound of the horn and glare of the headlights
James Barnes, a medical student, came down Western Avenue just behind Mr. Sturtevant and Mr. Pelletier. He testifies that the men parted at the edge of the sidewalk as described by Mr. Pelletier; the deceased started across Elm Street and on reaching the middle of the car track started to hurry; he says Mr. Sturtevant continued on to the middle of the street “when it seemed as though the right front fender of the aútomobile hit him in the abdomen.”' This witness saw the accident. And while there is testimony impeaching the account of the accident given by Mr. Pelletier, this statement of the occurrence by Mr. Barnes, while contradicted by the defendant’s witnesses., is unimpeached.
The witnesses for the defendant say that the deceased had been drinking some alcoholic beverage — the kind and amount, however, is not disclosed. They say, that driving along Elm Street on the car track in the middle of the street 150 feet away from Western Avenue, the deceased was visible as he stood at the edge of the sidewalk, and when the car reached a point 10 to 25 feet from the deceased he suddenly, although restrained by his companion, pulled away and started to stagger with uplifted hands across the street, and, in spite of the defendant’s swerving of his car to the left, ran into the right side of the automobile, breaking the windshield with his hand and tearing. off the tire carried on the right running-board as he fell backward. They assert that the defendant was driving slowly, but admit .that the car, an open touring model, had its sides curtains up along the entire right side, the side towards the sidewalk from which the plaintiff walked into the street.
These in brief are the facts in evidence. Is a finding of negligence based on this evidence clearly wrong? Is contributory negligence proved? Unless both these questions as a matter of law can be answered in the affirmative, the issue is one of fact and the case should be submitted to a jury.
With the increase in automobiles and the present development of higher power and increased speed, application of the salutory rule stated in Savoy v. McLeod, 111 Maine, 234, is now even more imperative than when laid down: “The driver of an automobile in the public highways, constantly travelled by pedestrians and teams and occupied by children of ages, should, to establish due care, exercise so high a degree of diligence in observing the rights of a foot passenger or team when approaching them, as to enable him to control it, or stop it if necessary, to avoid a collision, which cannot be regarded as a pure accident or due to contributory negligence.” The care to be exercised by the driver of an automobile on the public streets must be “commensurate with the danger to be avoided.” Savoy v. McLeod, supra; Day v. Cunningham, 125 Maine, 328. At crosswalks established for the passage of pedestrians, of common knowledge so used and likely to be used, this measure of care demands an increased vigilance on the part of the driver. 2 R. C. L., 1184. If such vigilance is lacking the care is not commensurate with the known danger to be avoided. Upon the evidence in the record we cannot say that a finding of negligence on the part of the defendant would be clearly erroneous.
Upon the issue of contributory negligence, the deceased by statute is presumed to be in the exercise of due care. R. S., Chap. 87, Sec. 48. Contributory negligence was properly pleaded, but the statute also requires that it be proved. Curran v. Ry. Co., 112 Maine, 96.
Rejecting the testimony of the witness Pelletier because of doubt of its credibility growing out of his alleged inconsistent statements,
The burden of proof is upon the defendant to prove contributory negligence. Upon the testimony of the witnesses for the defendant alone such a finding might stand. A finding to the contrary, however, based on the physical facts and the testimony of the plaintiff witness Barnes would not have been so clearly wrong as to require reversal of a verdict. A jury might find that the defendant’s automobile was down the street such a distance when the deceased loft the curb that an ordinarily prudent man would have deemed it safe to attempt the crossing.
The case is peculiarly one for the jury. The human element of credibility is involved to a marked degree. The sound judgment of twelve men under the clear rules of law can well measure the facts in the light of probabilities and human experience. It should be submitted to them.
Exceptions sustained.