Blanchette v. Waterville

• Decision Date: 03 February 1927
• Citation: 136 A. 116
• Parties: BLANCHETTE v. WATERVILLE, F. & O. RY.
• Court: Maine Supreme Court

136 A. 116

BLANCHETTE

v. WATERVILLE, F. & O. RY.

Supreme Judicial Court of Maine.

Feb. 3, 1927.

On motion from Superior Court, Kennebec County, at Law.

Action by Joseph Blanchette against the. Waterville, Fairfield & Oakland Railway. Verdict for plaintiff. On defendant's motion to set the verdict aside. Motion sustained. New trial granted.

Argued before WILSON, C. J., and PHILBROOK, DUNN, BARNES, and BASSETT, JJ.

F. Harold Dubord, of Waterville, for plaintiff.

Perkins & Weeks, of Waterville, for defendant.

DUNN, J. On motion by the defendant to set aside the verdict, the grounds pressed being that the verdict is counter to facts and law.

The action is of tort for injury sustained by the plaintiff, and for damage both to the motor truck which he owned and was operating and to its load, caused by collision with a trolley car of the defendant.

The collision occurred in Waterville, about noontime on October 3, 1925, at the junction of the cul-de-sac called Dennis court and the street known as Water. The excessive and unlawful speed of the trolley ear, and the failure to give timely warning that it was approaching, were the acts of negligence counted on.

The car was running southwards on Water street, which Dennis court entered laterally and easterly 25 feet still south of the nearest regular stopping place ahead.

Coming up Dennis court, which was short, comparatively level, and rather thinly settled, the car track in the street in front was in sight. On the north side of the court, the side of especial concern in this action, there were dwellings and small garages, and at the northeasterly corner of the ways, the Cloverdale store building. From the southwesterly corner of the store, that is, the corner on the court and the street, to the inner rail of the car track, the distance was but 10 feet. From that corner, except for the wire-carrying pole, which was near, the field of vision along the car line was unobstructed northward for from 35 to 40 feet.

Plaintiff was familiar with the surroundings. He went into Dennis court that day to sell garden truck and other things, as he had before. His business done, he started back for Water street, sitting in the truck behind the steering wheel, 0 feet from the end of the front spring. He drove slowly in low gear, apparently no vehicle coming toward him, seemingly none following, the way 34 feet in width, the position of the truck, when opposite the store, 3 feet from that side of the road, with the plaintiff aware of the location of the street railway, and of the fact that a car was supposed to be coming.

At the Cloverdale store, but not at the store corner, plaintiff "almost stopped" his car and looked. In front, there was no car, there was none to the southward, and that which later came from the north direction the building alongside shut from his survey. He continued on, the truck in low gear still, to the edge of the inner rail of the track, where, without having seen or heard anything while traveling the distance, he brought the truck to a full stop to see if a trolley car were near. He looked to the south, on which the outlook already had been fair from the court, and the track was clear. He turned his head oppositely and just then the crash was. The plaintiff was hurt, the motor truck virtually demolished, and the freight of produce and other things destroyed.

So much for the case, on the version of the plaintiff.

The 43-foot trolley car was on wet rails, for the day had been rainy. Touching the rate of speed of the car, there is no precise testimony. On the one side, the estimate was 10 to 15 miles the hour; on the other, the motorman testified that the car was coasting at from 8 to 10 miles, and that he made it come to a stop within three-fourths of its length.

Such is fair synopsis of the material record. From it but one rational inference is permitted, and that adverse to the plaintiff.

If the driver of a motor truck would prevail in an action for damages from a collision between his vehicle and a trolley car at a junction of streets, he must establish by the preponderance of all the evidence, not merely negligence of the defendant in proximate relationship to injury, but the further factual proposition that as driver he himself was in the exercise of that degree of care which an ordinarily prudent man in like circumstances would exercise, and that no want of the like care on his part was contributory to the injury.

Speaking in a broad way, motor trucks and trolley cars have coextensive rights and reciprocal duties at street crossings, but more exactly this is in the qualified sense that the respective...