Brown v. Sanborn

• Decision Date: 29 February 1932
• Citation: 158 A. 855
• Parties: BROWN v. SANBORN.
• Court: Maine Supreme Court

158 A. 855

BROWN

v. SANBORN.

Supreme Judicial Court of Maine.

Feb., 1932.

Exceptions from Superior Court, York County.

Action by Charles E. Brown against Howard L Sanborn.Judgment for defendant, and plaintiff brings exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Ray P. Hanscom, of Ogunquit, for plaintiff.

Verrill, Hale, Booth & Ives, of Portland, for defendant.

PATTANGALL, C. J.

Action for damages resulting from a collision between two autotrucks.The case comes forward on an exception taken to an ordered verdict for defendant.The sole issue presented here is, therefore, whether or not the evidence viewed in the light most favorable to plaintiff's contentions could have warranted a verdict in his favor.

The entire evidence, while not specifically included in the bill of exceptions, is under the circumstances necessarily before us for consideration.People's National Bank v. Nickerson, 108 Me. 341, 80 A. 849.

A study of the record discloses sufficient testimony to justify a finding that defendant was guilty of negligence.The issue narrows then to the question of whether or not, on the record, the plaintiff can be said to be guilty of contributory negligence as a matter of law.That was the conclusion of the trial judge, and careful scrutiny fails to reveal error on his part.

Plaintiffs truck, driven by his son, employed by plaintiff and at the time of the collision engaged in his business, in broad daylight, on a state highway twenty feet in width, collided with defendant's truck coming from the opposite direction, at a point where each was visible to the other at a distance of at least one hundred and fifty feet.The only eyewitnesses were the two truck drivers.

Eliminating from our consideration the testimony of defendant, who places the entire blame for the collision on plaintiff's agent, we have recourse to the story told by the latter.

He testified that he had driven a car for three years, that on the morning in question he was proceeding along a cement highway twelve feet in width, that on his right hand the soil next to the cement to the width of three feet was covered with tarvia, and on the opposite side five feet of tarvia, making a traveled way twenty feet wide, although ordinarily cars made use of the cement-covered portion in preference to the remainder of the road.

He had driven down one hill, short and not particularly steep, across a level, and had reached the foot of another hill which he was about to ascend when he saw defendant's truck coming over the brow of the hill, one hundred and fifty feet away, directly and rapidly approaching him.

Up to that time, the position of his truck is described as being such that his left wheel was about two feet to the left of the middle of the cement.In other words, he was occupying about eight feet of the cement, leaving about...