143 Me. 250 | Me. | 1948
In these two cases, tried together and brought forward by the defendant on identical exceptions, a minor, by his next friend, and his father, recovered verdicts in the Trial Court which represent jury findings on liability and jury estimates of the damage suffered by the minor, run over while attempting to cross a public highway by defendant’s truck driven by its agent, and by both the minor and his father in the past and future expense of his medical treatment.
The exceptions are to the admission over objection of the opinion evidence of two witnesses as to the speed of defendant’s motor vehicle at or immediately prior to the event, and the refusal of the Trial Court to direct verdicts for the defendant. One of the witnesses whose testimony is in question was just under ten years of age at the time of the accident, the other just over that age. Both were companions of the minor plaintiff and were crossing the road with him when he was injured, as was another boy who did not see the truck at all prior to the accident. Neither of the two who testified on the question of speed saw the truck until it was within a few feet of the point where the accident occurred.
The damage awards are not claimed to be excessive. The issue is liability. It must be resolved with full recognition of the principle that the facts must be viewed in the light most favorable to the plaintiffs, giving them the benefit of every justifiable inference. This principle controlled Ross v. Russell, 142 Me. 101; 48 A. (2nd) 403; and cases cited therein. Additional principles therein set forth, and supported, are that a pedestrian is not required as a matter of law to look and listen before starting to cross a road, and that the degree of care required of a minor is not that applicable to an adult but must be measured with due regard to age and capacity.
The accident occurred at about half past three in the afternoon of a January day in broad daylight. The highway was dry and level but had a small accumulation of ice and dirt along the curb on the northerly side of it, extending into the highway about one foot. It had neither crossing lines nor traffic lines painted on its surface, but traffic at the intersection traveled in three lanes and was controlled by lights which at the pertinent time were holding all eastbound Washington Street traffic west of the intersection and all westbound traffic on that street east of it except that headed to make the turn north into Exchange Street. The northerly lane accommodated that traffic. Defendant’s truck, so far as the record shows, was the only vehicle moving in it at the time of the collision, immediately prior thereto or thereafter for some minutes. In the interval the first officer to arrive on the scene made two chalk marks on the highway to identify the locations of a cap of the minor plaintiff found lying in the road and the left rear wheel of the truck where it stood at rest.
On the record the basis for liability must have been a finding that the speed at which the defendant’s truck was being driven constituted negligence and was the proximate cause of the accident. This is alleged in the first count in each declaration. Another count in each alleges that it was in an unsatisfactory state of repair, but there is no basis for an affirmative finding thereon. The evidence directly contravenes that allegation. Speed is the issue. The controlling statute, R. S. 1944, Chap. 19, Sec. 102, provides in Sub-paragraph I that motor vehicles shall be driven:
“at a careful and prudent speed not greater than is reasonable and proper, having due regard to the*255 traffic, surface, and width of the highway, and of any other conditions then existing * *
Sub-paragraph II specifies limits of fifteen miles per hour in approaching and traversing intersections and twenty-five miles per hour in business districts. The lesser speed is applicable within fifty feet of an intersection where the view is obstructed, and express provision is that it shall be deemed obstructed if there is not a clear and uninterrupted view of the intersection, and the traffic upon all ways entering it, for a distance of two hundred feet therefrom, during the last fifty feet of approach. Express statutory declarations are that speeds within the stated limits are prima facie lawful and that operation in excess thereof is prima facie not reasonable and proper.
The evidence would require factual decision that the minor plaintiff and his companions were crossing the highway diagonally northwesterly, faster than at a normal walking rate; that none of them looked to see if any westbound traffic was moving in the northerly lane, and none, except possibly the boy who brought up the rear, looked for any after leaving the southerly sidewalk; that neither the minor plaintiff nor the companion who was third in line saw the defendant’s truck before the accident; that the minor plaintiff was in the lead and entered the northerly lane, from between two stationary motor vehicles in the middle lane, when the defendant’s truck was moving westerly in it within a few feet of the place of entry; that he was struck by it when not more than two or three feet into the northerly lane; that he was thrown to the ground by the impact; that his injuries resulted from being run over by the left rear (dual) wheels; and that the truck came to a stop without leaving scuff marks on the highway and before its front wheels reached the traveled way in Exchange Street. A measurement taken by the police gives the distance from the place where the cap was picked up to the left rear wheels of the truck where it came to rest as thirty-eight feet.
That it is the particular and peculiar province of a jury to resolve such issues of fact as are involved in the instant cases is so clearly established as to require no citation of authority. Those factual issues are (a) the rate of speed at which the truck was being operated, (b) the part of it which knocked the minor plaintiff to the ground, and (c) where he entered the northerly traffic lane. On all of them there is a conflict of testimony, as there is on the question whether the boy picked himself up and moved northerly or was picked up by a bystander, but the factual decision on that is not material to the controlling issues. As to those the record carries opinion evidence as to speed from five witnesses, including the two whose competency to testify on the point is challenged by the exceptions, which must be
Factual declarations as to the part of the truck which struck the minor plaintiff and where he entered the northerly traffic lane do not involve the evidence rulings which are challenged. Decision on the latter of these points must precede consideration of speed because of the conflicting prima facie speed rules established by the statute. The question whether the statutory last fifty feet of approach to an intersection is to be measured from a street limit or its median line has never been decided and need not be in the present cases. The examination by counsel for the plaintiffs of the draughtsman who prepared the plan indicates that he construes the statute as applicable to the limit rather than the median line, but unless the uniform testimony of the minor plaintiff and his companions is disregarded, the decision must be that he entered the northerly traffic lane and was struck by defendant’s truck more than fifty feet from the easterly limit of Exchange Street. The only justifiable inference which will reconcile the testimony of the boys as to where they were crossing the highway with the location of the cap and blood-spot is that the boy was thrown, carried or moved more than ten feet westerly by the impact and passage of the truck. The “Approximate path of plaintiff,” shown on the plan by a broken line, indicates that the boys were headed for Richardson’s when they crossed the road. This is contrary to all the testimony which identifies the Adams House as their objective.
Disregarding, for the moment, the question of the competency of the opinion evidence challenged by the exceptions, the record contains speed estimates varying from a maximum of twenty-five miles per hour to a minimum of less than ten. The only flat twenty-five mile estimate was that of the boy who was just under ten years of age and was crossing the road with the minor plaintiff, next in line to him, and did not see the truck until it was within three or four feet of him and two or three feet of his leader who was hurt. That this estimate is high is shown by that of the only bystander who saw the truck prior to the accident— around fifteen or twenty — as well as by the boy’s admission on cross-examination that as a matter of truth he did not know whether it was going “twenty-five, or ten, fifteen, or thirteen.” The evidence of another bystander who gave a flexible estimate “Maybe twenty — twenty-five” must be disregarded. His own story indicates that he did not see either the truck or any of the boys before the accident, yet he averred and reiterated that the truck was traveling too fast, the last reiteration being when he was confronted in cross-examination with a statement to the police shortly after the accident, that it was proceeding at a moderate rate of speed. His reply was “It was going too fast. It might have been moderate.”
The jury must have disregarded, as was its right, the opinion evidence of the three occupants of the truck and the
The present facts are not comparable with those presented in Ross v. Russell, supra, but rather with those in Levesque v. Dumont et al., 116 Me. 25; 99 A. 719; and, in lesser degree, those in Milligan v. Weave, 139 Me. 199; 28 A. (2nd) 463. In both of those cases, as the writer of the opinion in the Ross case notes, the real basis for decision was that the act of the pedestrian was the sole proximate cause of the accident. So it was here. Without reference
An additional point on which there is a conflict of testimony, i.e. whether the minor plaintiff was struck by the front bumper of the truck, its fender or its body, may be said to support decision that the defendant herein was not chargeable with negligence, although there is no necessity for resolving the conflict. One of the companions of the minor plaintiff said it was the bumper, another that he thinks it was, and still another that it looked as if it was, or as if it was the fender, yet the second of these said that he did not see the truck at all. The bystander who saw the accident testified that it looked as if the body of the truck hit the boy. It would be hard to reconcile a finding that the boy was hit by the bumper with the undoubted fact that the front wheels did not run over him and the rear wheels did, as would be the natural result if he was knocked down by either the fender or the body. In either such case, and particularly if the impact was with the body of the truck, the inference would be that the minor plaintiff was never in a place where the truck driver had even a chance to see him and stop the truck.
While verdicts should have been directed for the defendant without reference to the question of the competency of the opinion evidence of the two boys about speed, the exceptions challenging the admission of that evidence merit consideration. If it was not competent it is even more apparent that the verdicts should have been directed. A considerable latitude on the issue of the competency of such
“He could have had no intelligent thought about the speed, even though fifty-seven years of age.”
The simplest mathematical calculation will show that a vehicle traveling at a rate of fifteen miles per hour traverses twenty-two feet in a single second. If we accept the testimony of the boy who saw it for the first time when it was three feet (taking the larger estimate) from the lad who was run over and assume a speed only three-fifths as great as his estimate, it would have reached that lad in less than a seventh of a second. The corresponding distances for speeds of twenty and ten miles per hour are a little more than thirty-two and fourteen and a half, respectively. The corresponding time calculations are a little less than a tenth and a fifth of a second. According to the testimony of the boy the speed would represent travel at more than thirty-six feet per second and the three feet would have been covered in less than a twelfth of a second. The corresponding figures for the other boy are not so extreme because his speed estimate was less than a third but neither time interval would permit intelligent thought. The opinion evidence challenged by the exceptions should have been excluded.
The case presents errors in the admission of evidence and in the refusal to direct verdicts.
Exceptions sustained.