Bragdon v. Kellogg

• Court: Maine Supreme Court
• Writing for the Court: SPEAR, J.
• Citation: Bragdon v. Kellogg, 118 Me. 42, 105 A. 433, 6 A.L.R. 669 (Me. 1919)
• Decision Date: 01 February 1919
• Parties: BRAGDON v. KELLOGG.

105 A. 433

118 Me. 42

BRAGDON

v. KELLOGG.

Supreme Judicial Court of Maine.

Feb. 1, 1919.

Motion from Supreme Judicial Court, Aroostook County, at Law.

Action by Burns B. Bragdon against Wesley S. Kellogg. Verdict for plaintiff. On motion for new trial. Motion sustained.

Argued before COUNISH, C. J., and SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

Shaw & Thornton, of Houlton, for plaintiff.

Verdi Ludgate, of Sherman Station, and Hersey & Barnes, of Houlton, for defendant.

SPEAR, J. This case involves a mixed question of law and fact. It grows out of an automobile accident, happening in broad daylight, on a road of ample width to allow two cars to pass each other, without the least danger of interference.

The facts in this case show but a repetition of the negligent conduct in the operation of cars, that constitutes a prolific source of the accidents that occur in this class of cases.

This accident happened in the village of Sherman, town of Sherman, Aroostook county. The plaintiff's son was driving a new Buick ear, westerly, upon Main street, a well-wrought piece of road, with the intention of turning to his left at practically a right angle into North street. The defendant was on North street, traveling south, intending to turn at a right angle to his right into Main street. That is, these parties were approaching, each to turn the same corner into the same street from which the other was coming.

As North street formed a junction with Main street without crossing it, it was evident to any one approaching either side of North street from Main street that a car coming from the north must turn either to the right or the left, into Main street, when it reached the junction.

These two streets meeting each other in this way present a somewhat different situation than would arise if they crossed each other, forming four corners, in this, that a car on Main street, approaching North street, is charged with the knowledge that a car coming from North street must necessarily turn to the right or the left into Main street. Therefore it is inevitable that each party, where one intends to turn to the north and the other to the west, knows that he may meet the other, at any moment, at the corner made by the junction of these two streets. If they can see each other, as they approach the corner, there is no earthly excuse why they should meet in collision. If they cannot see each other, then greater is the duty with which they are each charged that they be absolutely on their proper side of the road.

The law of the road was established many years ago, before electric roads or automobiles were heard of yet it provided that even slow-moving vehicles like teams, upon approaching to meet on a way should "seasonably turn to the right of the middle of the traveled part of it, so far that they can pass each other without interference." R. S. c. 26, § 2. As the word "team" now includes an automobile, this statute is applicable now to this class of vehicles. This statute is mandatory when it says travelers must "seasonably turn to the right." It means that they must turn in season to prevent a collision, and the one who fails to obey this mandate is prima facie guilty of negligence, and must sustain the burden of excusing his presence upon the wrong side of the road.

In Neal v. Rendall, 98 Me. GO, 56 Atl. 209, 63 L. R. A. 668, a leading case, this rule of conduct, even of teams, is fully confirmed. This is a case in which the street upon which the parties were passing in opposite directions, was located in the city of Auburn and was from 40 to 50 feet wide. Either side of the middle of the traveled part of the way was wider than the wrought part of the ordinary country road. There was ample room, on either side of the middle for three teams to pass abreast. The defendant was on his wrong side of the road, with ample room to pass the plaintiff, without interference; but "just as the teams were about to meet and puss each other, the horse attached to the wagon in which the plaintiff was riding, became suddenly frightened and * * * shied * * * towards the defendant's team" and the accident happened. The court found that "there was no [other] evidence of nsy negligence on the part of the defendant" except the mere fact of the "position of his team on the left of the middle of the traveled part of the road." Upon this state of facts the court, on report, found that the case should stand for trial.

But the grounds upon which the case was decided is the important consideration. On page 73 of 98 Me., on page 211 of 56 Atl. (63 L. R. A. 668), "seasonably turn" is defined as follows:

"'Seasonably turn' means 'that travelers shall turn to the right in such season that neither shall be retarded in his progress, by reason of the other occupying his half of the way, which the law has assigned to his use, when he may have occasion to use it in passing. In short, each has an undoubted right to one-half of the way whenever he wishes to pass on it, and it is the duty of each, without delay, to yield such half to the other.'"

Upon the question of prima facie negligence the court say:

"This is a regulation to avoid collisions, and if one neglects it, and an accident follow, an explanation of the occurrence must begin with some presumption against him. Cooley on Torts, p. 666. This court has held the fact that a party was at the left of the road at the time of the collision 'strong evidence of carelessness,' and has said that, unexplained and uncontrolled, it would not only be strong but conclusive evidence of carelessness. Larrabee v. Sewall, 66 Me. 381."

The court further say, same page:

"Notwithstanding the statutory duty to turn to the right of the middle of the traveled way the defendant had the right to be upon any part of the road, and his negligence must arise out of his failure to exercise ordinary care under all the circumstances. There was ample room for the plaintiff and her husband to pass on the defendant's left, and they would have passed in safety had they kept upon the same course. On the other hand, the defendant was on the wrong side of the road, he saw the plaintiff approaching in ample time to turn to the right of the middle of the traveled road. There was nothing to prevent his doing so, and the evidence tended to show that had he done so there would have been no collision."

These citations state the responsibility that rests upon the slow-moving horse team in its duty to observe the law of the road, and declares a collision on the wrong side of the road, unexplained, "conclusive evidence of carelessness." This clearly throws the burden on the offending party in such a case. This same case, then, treats the question of duty or care which the law imposes upon travelers, moving with animal power. ON page 76 of 98 Me., on page 212 of 56 Atl. (63 L. R. A. 668) it is held:

"To hold the defendant, however, it is not necessary that he should be able in the exercise of ordinary prudence to foresee the precise form in which the injury in fact resulted. Hill v. Winsor, 118 Mass. 251. 'The injury must be the direct result of the misconduct charged, but it is not to be considered too remote if, according to the usual experience of mankind, the result ought to have been reasonably apprehended. * * *'"

These rules of conduct and responsibility on the road apply to vehicles moved by animal power. They must accordingly be applied with emphasized severity to vehicles weighing tons, capable of great speed and propelled by mechanical power, because most duties in life are measured by the consequences of a breach; and ordinary care is always predicated upon the degree of danger of which it is spoken.

Yet the persistent claim of automobile operators is that they have a right to use any part of the road, which they do, and are entitled to always rely in their use of the road upon the presumption that the other party is driving at a legal rate of speed, so that they can regulate their conduct upon this legal presumption. But this rule cannot be invoked even in ordinary cases of negligence, much less in an automobile case. Such operators cannot confine their anticipation to a legal rate of speed as a protection. They are held to anticipate that, according "to the usual experience of mankind, the result ought to be reasonably apprehended." These operators must anticipate not according to the "legal," but the "usual," experience of mankind in running automobiles on the public highways.

It is, then, a matter of common knowledge, the "usual experience," that automobiles are more often driven without any reference to legal speed than in observance of it. True, in the trial of automobile cases there are almost always two rates of speed that might be marked, plaintiff's 1, and plaintiff's 2, in which the plaintiff is seldom ever going over a speed of from 8 to 12 miles, while the defendant is going at from 25 to 45 miles an hour, and sometimes so fast that his speed produces a result in the nature of a blur, as he passes. Nevertheless, the truth is that automobile operators pay little attention to the legal rate of speed. Hence it is "the usual experience" of operators that they are...