Andreu v. Dostie

• Decision Date: 07 February 1949
• Citation: 63 A.2d 926
• Parties: ANDREU v. WELLMAN. DOSTIE v. WELLMAN.
• Court: Maine Supreme Court

63 A.2d 926

ANDREU

v.WELLMAN.

DOSTIE

v.WELLMAN.

Supreme Judicial Court of Maine.

Feb. 7, 1949.

Exceptions from Superior Court, Androscoggin, County, at Law.

Actions for injuries by Mildred Andreu and by Albert W. Dostie against Edward F. Wellman. Defendant's motions for directed verdicts were granted, and the plaintiffs bring exceptions.

Exceptions overruled.

See also 50 A.2d 193.

Benjamin L. Berman and David V. Berman, both of Lewiston, for plaintiffs.

William B. Mahoney, of Portland, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, MERRILL, JJ.

THAXTER, Justice.

There are before us here two actions to recover for personal injuries growing out of the same alleged negligence. By stipulation they were tried together. At the close of the plaintiffs' cases, the defendant rested and moved for a directed verdict in each. The cases are before us on exceptions to the granting of such motions. Exceptions to the exclusion of certain evidence were waived in argument.

The defendant was the owner of a 1936 Buick automobile. On August 26, 1944, he drove this car into the garage of the Lewiston Battery Service Company, the business of which was the selling and servicing of batteries. He had with him his grandson, a bright child five years old, who had been living with the defendant while the boy's father was in the service. The entrance to the garage was by a ramp leading from the sidewalk. The defendant stopped the car on the level floor of the garage, got out on the left side and the little boy on the right. Both doors which swung to the front were left open. Dostie, the plaintiff in one action, who was an employee of the Battery Service Company, proceeded to inspect the battery, which was under the front cushion on the right-hand side. He put his tools on the right running board, and tilted the cushion upwards toward the rear of the car. When his work was done he replaced the cushion and was picking up his tools when suddenly the motor started and the car moved backward toward the door of the garage with the little child in it. The open door on the right caught Dostie and threw him to the floor. He was severely injured. The automobile went through the door down the ramp and into the street where it hit a taxicab in which the other plaintiff, Mildred Andreu, was a passenger. She, too, was injured.

The evidence does not indicate how the defendant left the automobile, whether it was in gear or out, and whether the brakes were on or off. To start the motor it was only necessary to push the switch lever upward which was on the steering post under the steering wheel, and push hard on the accelerator pedal. On this type of car there was no separate starting button or pedal. Dostie claims that he did not touch the gear shift or the switch lever and that the cushion when he lifted it up and replaced it did not touch either; but the possibility of either or both of these things having happened without his knowledge is not ruled out. The truth of the matter is we do not know what happened except that the child was in the car on the left side when it happened. If it was in gear, it could have started by the child throwing the switch lever and pushing down hard on the...