118 Me. 74 | Me. | 1919
Action on the case for injury to the plaintiffs automobile resulting from a collision with the automobile of the defendant. The plaintiff recovered a verdict for $200. and the case is before the court on the defendant’s general motion for a new trial.
The evidence shows that the plaintiff’s automobile was coasting on a hill over a distance of forty or fifty rods at a speed of at least fifteen miles an hour, and that the automobile was, during the time required to go that distance, on the wrong or left hand side of the road; that
Even so, the claim if established, does not place full and exclusive liability upon an intoxicated defendant, and relieve the plaintiff from the exercise of the care which the law generally, and the law of the road particularly, requires of both plaintiff and defendant. An intoxicated driver may still be able to obey the law of the road, and the defendant whether intoxicated or not, was obeying the statute which requires a person “travelling with a team approaching to meet another on a way, to seasonably turn to the right of the middle of the travelled part of it, so far that they can pass each other without interference.” R. S., Chap. 26, Sec. 2.
It is clear that the defendant was well out on his right side of the way, when the plaintiff’s chauffeur saw his car, and from the evidence and the position of the car after the accident, the defendant at no túne encroached upon the lawful rights of the plaintiff.
Was the plaintiff in the exercise of due care and did it appear affirmatively that he did not by his own act or fault contribute to produce the injury? In order to establish his case the plaintiff had the burden to show, by proper evidence the truth of the allegations in his declaration, in which he sets up the claim that he was using due care, and was not chargeable with contributory negligence.
A careful study of the evidence leads to but one conclusion. Both parties to the collision were negligent. The jury found that the plaintiff was not negligent. That conclusion is not supported by the evidence and the jury was not warranted in so finding.
Plaintiff and defendant were travelling on a State road where for five hundred feet, each could see the other approaching. The testimony of the sheriff who was on the scene early, indicates that the plaintiff did not turn out or leave his position on the wrong side of the way. The plaintiff has offered no explanation of the delay in turning. He has the burden of showing that no want of due care on his
His testimony fails to sustain the burden in either respect.
It appears from the whole record that the verdict is clearly wrong. The entry will be,
Motion sustained. Verdict set aside.
