Callahan v. Amos D. Bridges Sons, Inc.

• Citation: 147 A. 423
• Parties: CALLAHAN v. AMOS D. BRIDGES SONS, Inc.
• Decision Date: 04 October 1929
• Court: Supreme Judicial Court of Maine (US)

147 A. 423

CALLAHAN

v. AMOS D. BRIDGES SONS, Inc.

Supreme Judicial Court of Maine.

Oct. 4, 1929.

On Motion from Superior Court, Androscoggin County.

Action by Adelbert F. Callahan against Amos D. Bridges Sons, Incorporated. Verdict for plaintiff. On defendant's motion to set aside verdict. Motion sustained and new trial granted.

Argued before WILSON, C. J., and DUNN, DEASY, STURGIS, BASSETT, and FARRINGTON, JJ.

Fred H. Lancaster, of Lewiston, and Seth W. Norwood, of Portland, for plaintiff.

Oakes & Farnum, of Auburn, for defendant.

DUNN, J. An hour and a half before sunset on September 22, 1928, the automobile of the plaintiff and the self-propelling steam shovel of the defendant were being operated, in opposite directions, upon a highway in the town of Livermore. They collided.

The steam shovel was on the wrong side of the road. That is, instead of being to the right of the middle of the traveled part of the way, so far that it and the automobile could pass without interference, the shovel was to the left of that middle. Rev. St. c. 26; § 2, as amended.

This is the only allegation of negligence.

On issue joined, plaintiff prevailed; the jury award of damages being $240.

Defendant moves to set the verdict aside because it is not supported by the evidence. The ground of excessiveness, not having been argued, is deemed waived.

When the allegation is that the failure of the defendant to observe the law of the road was the proximate cause of the damage, the plaintiff takes upon himself the burden of establishing, not only the negligence of the defendant, but that the plaintiff himself was free from any contributory fault.

The fact that the steam shovel is shown to have been on the left of the road raises a prima facie presumption of negligence. Procedurally, then, it is for the defendant, in reference to the point to which the presumption relates, to go forward with the evidence.

Prima facie presumptions are open to explanation. Raymond v. Eldred, 127 Me. 11, 140 A. 608.

Defendant introduced testimony that, to make the curve, it was essential that the machine be where it was.

There need not be pause to consider what effect the jury could have given to the explanatory evidence. When the plaintiff, in the exercise of common prudence, reasonably could have seen the steam shovel on the wrong side of the street, it was then 760 feet, in unobstructed view, ahead of him.

The steam shovel was 8 feet wide, 15 feet high, with an excavating bucket attached to a manipulatory arm, elevated above its roof. It had a coating of gray paint. Speed capacity one mile an...