Bubar v. Fisher

• Decision Date: 26 August 1935
• Citation: 180 A. 923
• Parties: BUBAR v. FISHER. FOSS v. SAME.
• Court: Maine Supreme Court

180 A. 923

BUBAR

v. FISHER.

FOSS

v. SAME.

Supreme Judicial Court of Maine.

Aug. 26, 1935.

On Motions and Exceptions from Superior Court, Aroostook County.

Actions by Wendell R. Bubar, and by George S. Foss, pro ami, against Vincent P. Fisher, which were tried together. Verdict for plaintiff in each case. On motions and exceptions.

Motions and exceptions overruled.

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

Herschel Shaw, of Houlton, for plaintiffs.

Granville C. Gray and Ralph K. Wood, both of Presque Isle, for defendant.

THAXTER, Justice.

The plaintiffs in these two cases, which were tried together, were passengers in an automobile driven by the defendant, Vincent P. Fisher. They were injured, when the car, in making a right-angle turn from one street to another, went off the road, and plunged to the bed of a stream forty feet below. In each case a verdict was found for the plaintiff, and each is now before us on the defendant's general motion for a new trial and on an exception to the refusal to give a requested instruction.

There is ample justification for the finding of the jury that the defendant was negligent. The controversy is as to the contributory negligence of the plaintiffs, which, according to the defendant's contention, is indicated by their accepting an invitation to ride with him, when he was in an intoxicated condition. That the defendant had had liquor to drink seems to be established, but that his being under the influence of it was a contributing cause of the accident is not altogether clear, and much less so that the plaintiffs knew his condition. He states that he could drive "all right," and that the accident happended because he got into some gravel and lost control of the car. The plaintiffs claim that they saw no indication that he was under the influence of liquor. Dr. Blossom, who treated him after the accident, testifies that he had been drinking heavily, and a police officer says that he smelled liquor on his breath. The evidence does not show that either of the plaintiffs was under the influence of liquor. Under such circumstances it seems clear that the question of the plaintiffs' contributory negligence was for the jury.

Neither can we hold that the damages are excessive. The plaintiff Bubar suffered severe lacerations to his head, and for a time was in a serious condition from shock caused by loss of blood and immersion in the water. He had some injury to his back,...