Chaisson v. Williams

• Decision Date: 02 September 1931
• Citation: 156 A. 154
• Parties: CHAISSON v. WILLIAMS.
• Court: Maine Supreme Court

156 A. 154

CHAISSON

v. WILLIAMS.

Supreme Judicial Court of Maine.

Sept. 2, 1931.

"Ordinary care" is that degree of care that the great majority of legally responsible persons, owing a legal duty to use care, or the type of that majority—that is to say, a person of ordinary intelligence and reasonable prudence and judgment— ordinarily exercises under like or similar circumstances.

The doctrine is simply a mode of proving negligence of defendant, inferentially, without changing the burden of proof.

The guest alleged that while she was riding gratis and herself in exercise of due care, her host carelessly, recklessly, and negligently drove his automobile off the road into and among bushes and trees and against a stump, to the immediate hurt of the guest.

Motion from Superior Court, Kennebec County.

Suit by Mary Ellen Chaisson against Howard S. Williams. Verdict for plaintiff. On defendant's motion for a new trial and on exception to an instruction, and to refusal of directed verdict.

Exception overruled; motion overruled on condition of remittitur.

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

Locke, Perkins & Williamson, of Augusta, for plaintiff.

Robinson & Richardson, of Portland, and Burleigh Martin, of Augusta, for defendant.

DUNN, J.

The plaintiff, while riding by invitation of the defendant, as a guest in an automobile owned and operated by him, sustained personal injuries.

An exception to the refusal of a directed verdict for the defendant, made at the close of the evidence, and a general motion by defendant for a new trial, seasonably filed after verdict for the plaintiff, raise the same questions. The motion raises, in addition, that the damages assessed by the jury are exces sive. Defendant also pursues an exception to an instruction.

The declaration is in two counts.

The gist of the first count is that defendant, notwithstanding he knew that the steering gear of his automobile was not working properly, and that the air pressure in a front tire had become low, yet, unmindful of legally imposed duty to exercise care and prudence for the protection of his invitee, attempted to drive his automobile rapidly around a highway curve; the automobile, however, being out of control, continued on, and left the road and ran into the woods, and struck a stump, the actionable injury of plaintiff proximately resulting.

The second count alleges that while plaintiff was so riding gratis, and she herself was in the exercise of due care, defendant carelessly, recklessly, and negligently drove his automobile off the road into and among bushes and trees, and against a slump, to the immediate hurt of the plaintiff.

The plea was the general issue.

Only the plaintiff introduced evidence; the defense put in none whatsoever. A general verdict was returned, the assessment of damages being $5,500.

The element of contributory negligence, counsel for defendant concede in their brief, is out of the case, because not relied on in the specifications of defense, filed under Superior Court Rule IX.

The accepted invitation was to ride, for pleasure, in the afternoon of November 1, 1930, from Augusta to Jackman, and return. In Augusta, before the start, a garage man installed a new valve in the left front tire of the automobile, a Studebaker of the sedan type. This done, defendant drove, plaintiff sitting beside him, in the direction of Jackman, for approximately three hours, without trouble or mishap.

Plaintiff witnessed that, ten or fifteen minutes before the occurrence of the accident (when, so far as the printed record shows, no one was meeting them on the smooth, tarred-surfaced, but hilly and crooked road, and nothing out of the usual was being done to the automobile), she "thought there was something wrong." "The car," to use her own words, "seemed to be on the left side of the road. I looked at him (defendant) and he seemed to be at ease, and by the time I looked again the car was on the right side, and I didn't think any more about it."

Defendant, so plaintiff's testimony continues, "turned his wheel as he went into the particular curve; we didn't make the curve, but went across the road," and out of the road, and the car hit the stump.

The testimony of two other witnesses, who, traveling in the same direction, in another automobile, arrived shortly at the scene of the accident, agrees in proving that the automobile of the defendant left the road. On the subject of the cause of the accident, one of the witnesses testified: "Instead of taking the S curve to the right, at the foot of a pitch, the car went straight ahead, and landed in the woods, the bigness of it, against a stump."

The condition of the automobile after the accident is not shown. If the steering mechanism was defective, or the tire partially deflated, or wholly blown out, there is no evidence of the fact.

Plaintiff testified that after the accident, and before she and defendant had been helped from his car, defendant, in answer to her question, "What in the world do you suppose happened?" replied, "It must have been that front tire; it had been bothering a little while." Another witness attested that the injured defendant, on his way to the office of a physician, "said something as to the tire; that he had to fix it, or something," but what the defendant said, the witness said he himself could not recollect.

The defense argues that, recalling the incident of the installation of the new valve, defendant but surmised that the tire in which the valve had been put, went flat, and that his statement had no other basis than conjecture.

It might well be argued that the weight to be given to the testimony was slight, but it is not to be said, as a matter of law, that the testimony was without any probative force.

The defendant spoke about "that tire." This, however, is not all there is in the transcript on the point. Defendant had driven the automobile to the moment of the impact. He told the plaintiff, on the authority of her testimony, that the tire "had been bothering." Inference that, at the crucial curve, a defective tire had counteracted effort to steer the machine, would not have been unreasonable. It was for the jury, aided by the arguments of counsel, and guided by the instructions of the judge, to determine what defendant said, what he meant by what he said, to deduce legitimate inferences, and resolve to what extent, from the standpoint of the likelihood of truthfulness and accuracy, to apply the testimony.

The great question in this case arises, not so much under the first count as under the second count in the declaration, basing right to recover on the general allegation of the negligent, careless, and reckless operation of the automobile.

In most cases of that variety founded upon the averred violation of a legal duty, voluntarily assumed without consideration, the testimony is conflicting; some facts indicating liability, and some pointing to the exercise of proper care. Not so here.

In the instant case, entirely apart from the testimony, under the first count in the declaration, that directly tended to assign default to the defendant for driving the automobile off the road, when he knew, or ought to have known, in time to have prevented catastrophe, that the steering mechanism and tire were not functioning suitably, there was, under the second count, legally sufficient evidence that the defendant failed in the performance of the duty which arose when the plaintiff entered the automobile. McDonough v. Boston El. Ry. Co., 208 Mass. 436, 94 N. E. 809.

An individual owning or operating an automobile must, for the safety of his guest in the vehicle, exercise in his own conduct "ordinary care," which is that degree of care that the great majority of legally responsible persons, owing a legal duty to use care, or the type of that majority—that is to say, a person of ordinary intelligence and reasonable prudence and judgment—ordinarily exercises under like or similar circumstances.

No definition of "negligence" can, in itself, be complete without regard to special circumstances, nor be fully understood without the addition of some essential set of facts.

However, for a failure on the part of the owner or operator to exercise ordinary care for the protection of his guest, the guest not having assumed other than the risks and dangers usually or naturally incident to such a mode of transportation, nor having been guilty of contributory negligence, such owner or operator will be held negligent, and liable for the damages between which and such failure, causal connection exists. Avery v. Thompson, 117 Me. 120, 103 A. 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, 1122; Peasley v. White, 129 Me. 450, 152 A. 530.

Holding the owner or operator to the standard of ordinary care may tend to prevent inviting guests, but the gratuitous passenger should be entitled, from the owner or operator, to the exercise of some degree of care, for safety in the driving of the car, and that of ordinary care seems fair and just.

The rule adopted in Avery v. Thompson, supra, was characterized by the Michigan Supreme Court (prior to the enactment in the state of a different statutory standard, Act No. 19, Public Acts 1929, amending Act No. 302, Public Acts 1915), as reasonable and sane. Roy v. Kirn (1919) 208 Mich. 571, 175 N. W. 475. The same rule found application in Kentucky, Beard v. Klusmeier (1914) 158 Ky. 153, 164 S. W. 319, 50 L. R. A. (N. S.) 1000, Ann. Cas. 1915D, 342; in Maryland, Fitzjarrel v. Boyd (1914) 123 Md. 497, 91 A. 547; and in Connecticut, Dickerson v. Connecticut Company, 98 Conn. 87, 118 A. 518.

The law imposes on the plaintiff, in an action of this kind, the general burden of proving the material averments of the declaration in his writ, by a preponderance of all the evidence, else his case fail. In a strict sense, this burden never changes, though it may be inferentially aided and...