Dube v. Sherman

• Decision Date: 29 March 1937
• Citation: 190 A. 809
• Parties: DUBE v. SHERMAN (two cases). FECTEAU v. SAME.
• Court: Maine Supreme Court

190 A. 809

DUBE

v. SHERMAN (two cases).

FECTEAU

v. SAME.

Supreme Judicial Court of Maine.

March 29, 1937.

Exceptions from Superior Court, Kennebec County.

Actions by John Dube, Esther Dube, and Catherine Fecteau, respectively, against Arthur L. Sherman. Verdicts for defendant, and plaintiffs bring exceptions and move to set aside the verdicts.

Exceptions and motions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

F. Harold Dubord, of Waterville, for plaintiffs.

William B. Mahoney, and John B. Thomes, both of Portland, and Perkins & Weeks, of Waterville, for defendant.

DUNN, Chief Justice.

Three actions, sounding in tort, one by John Dube, the second by his wife, Esther, and still another by their niece, Catherine Fecteau, against Arthur L. Sherman. The litigation arose out of an automobile accident that occurred not far from the Winslow-Vassalboro town line, on the Waterville-Augusta highway, in the early afternoon of August 30, 1935. The day was fair, sky clear, sun shining, road dry.

John Dube, who drove the vehicle in which the other plaintiffs were guest passengers, declares, in separate counts, of which more presently, for damage to his car, to his clothes, to a watch he was wearing; for bodily hurt; and for expenses incurred on account of his injured wife.

Each of the other plaintiffs alleges that actual physical pain occasioned her loss or damage.

Plaintiffs allege for foundation of civil liability at common law, that the negligence of defendant, in attempting to drive his automobile between their car and a truck, gave rise to the respective rights of action. Evidence insisted to support such allegation was introduced.

A motion was made in the court below, that, because of some defect on the part of a juror in failing to return immediately with his fellows from the conference room, to report the answer of the jury concerning the matters of fact committed to their trial and examination, the panel be discharged without a verdict.

The motion was refused.

At the bar of this court, exceptions to such refusal are not seriously pressed. The exceptions are regarded as abandoned.

Plaintiffs rely on motions grounded, in gist, that the verdicts for defendant, being against the evidence, and therefore contrary to law, ought not to stand.

The road in question runs generally north and south. At the point of the accident, macadam surfacing, 18 feet in width, is divided by a white line into two lanes; the lane in which plaintiffs were riding was 9 1/2 feet wide. Next the macadam, and of the same level, was a graveled shoulder, suitable for vehicular use, 3 1/2 feet in width.

Patrolmen were repairing the road. Testimony describes the work done by them as "patches"; again, as "new construction."

Defendant is a chauffeur; he had, over the period of twenty-two years, received compensation for his services in operating motor vehicles. On this day, he was going southerly, i. e., in the direction of Augusta, on a 5 per cent. grade, on his right side of the public way. The patrolmen, or, if not they themselves, the "patches," had been within defendant's view since he was one-fourth of a mile away. The lane in which his car was proceeding was narrower by a foot than the adjoining one.

The jury could find, from the evidence, that directly ahead of defendant, when near the patrolmen, was new construction, and the aforesaid truck. The truck, one for hauling gravel, but then parked, blocked the lane. The automobile was slowed almost to a stop; then, defendant...