Cobb v. Cumberland County Power & Light Co.

• Decision Date: 15 November 1918
• Citation: 104 A. 844
• Parties: COBB v. CUMBERLAND COUNTY POWER & LIGHT CO.
• Court: Maine Supreme Court

104 A. 844

COBB

v. CUMBERLAND COUNTY POWER & LIGHT CO.

Supreme Judicial Court of Maine.

Nov. 15, 1918.

Exceptions from Supreme Judicial Court, Cumberland County, at Law.

Action by Florence W. Cobb against the Cumberland County Power & Light Company. Verdict for plaintiff, and the case is before the law court on defendant's motion and exceptions. Motion and exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

Frank H. Haskell, of Portland, for plaintiff.

Bradley & Linnell, of Portland, and William Lyons, of Westbrook, for defendant.

CORNISH, C. J. This is an action on the case, brought to recover damages for personal injuries received by the plaintiff while a passenger in an automobile operated by her husband, and struck by an electric car operated by servants of the defendant. A verdict for $775 was rendered in favor of the plaintiff, and the case is before the law court on defendant's motion and exceptions.

Motion.

The accident occurred about 11 o'clock in the evening of April 17, 1917, in the city of Portland. Mr. and Mrs. Cobb, with five other passengers, entered Congress street, which runs in a general easterly and westerly direction, from Oak street, which runs in a general northerly and southerly direction. The approach to Congress street was from the southerly side. The purpose of Mr. Cobb was to cross the electric tracks on Congress street, and then turning to the left to proceed westerly on the northerly side. At the same time a car was approaching and moving easterly on the southerly track of the electric railroad.

The plaintiff and her husband claim that as they emerged from Oak street the electric car was quite a distance to the west on Congress street and seemed to be slowing down as if to stop; that they supposed they had ample time in which to cross without incurring any danger whatever; that the husband gave the hand signal and proceeded slowly on his way straight across the tracks, and when the rear wheels of the automobile had passed nearly over the southerly track it was violently struck by the car, thrown around upon the northerly track, and headed toward the west.

The defendant's contention is that the electric car was coasting along Congress street at a rate of 4 to 5 miles an hour, and was under complete and watchful control; that the automobile, on emerging from Oak street, did not proceed straight on, but turned easterly and proceeded along Congress street in the same direction as the electric car for a distance of about 25 feet, and then darted suddenly toward the track and without warning went directly in the path of the car at a point so close to the car that, notwithstanding the immediate application of the brakes, the collision could not be averted. These were the sharp contentions as to the manner in which the accident happened. The evidence was flatly contradictory, and the jury evidently took the plaintiff's view.

So far as the negligence of the defendant is concerned it should be remembered that the collision took place at a street junction, a place where the electric car and the automobile are on an equality, and a close watch is required on the part of the motorman. Marden v. Street Railway Co., 100 Me. 41, 60 Atl. 530, 69 L. R. A. 300, 109 Am. St. Rep. 476. This rule as to the duties of drivers of all vehicles at street junctions must be strictly observed. It tends to safety in travel.

When questioned in regard to his conduct, the motorman testified:

"If we follow an automobile, and a hand signal is given, we understand he is going across in front of us, either in one direction or the other; but an automobile coming out of a side street to cross directly in front of us, and give us a hand signal, they either wait or take their chances of going across."

This answer may have given to the jury the impression that the motorman claimed a priority of passage, or was regardless of, or at least indifferent to, the rights of travelers approaching from a side street.

So far as the plaintiff's want of due care is concerned, it should be noted that she was merely a passenger sitting on the rear seat; that her husband, an experienced driver, was in full management and control of the machine; and, even though he might be deemed guilty of contributory negligence, his negligence was not imputable to her. Denis v. Street Railway Co., 104 Me. 39, 70 Atl. 1047. It further appears that she did not blindly rely on him, because she also looked, saw the car some distance up the street, and observed nothing to indicate peril in crossing the track.

Without further discussion, we would say that, while the case is somewhat close, we do not regard the verdict so palpably wrong as to warrant our intervention.

Exceptions.

The exceptions involve two questions: First, whether the automobile, considering the purpose for which it was being used at the time, was legally registered. Second, if not, whether nonregistration is a bar to recovery.

As to the first point, it appears that this automobile was registered under the provisions of R. S. c. 26, § 24, then in force. This section provided that, instead of the separate and individual registration of each car by a manufacturer or dealer, such manufacturer or dealer could obtain a certificate of registration bearing a general distinguishing number or mark, together with five number plates, so that for the specified number of cars the same number and distinguishing mark might be used. This was called a certificate of registration "to purchase, demonstrate, sell, and exchange automobiles." It was not a general and unlimited license for all purposes and uses, but for the restricted uses named. It did not include riding for pleasure, nor for hire. On this occasion the auto was being used obviously for no one of the restricted uses, but for pleasure alone, and therefore, so far as this particular trip was concerned, and as relating to this accident, it was the same as if the car had not been registered at all.

This brings us to the second and vital point, whether, considering this as an unregistered car, the plaintiff is thereby precluded from recovering in this common-law action for negligence.

We are aware that the Massachusetts court has so construed the registration statute of that state as to render an unregistered car a trespasser and an outlaw, having no rights which even a negligent party is bound to respect, and to whose occupants no duty is owed by the traveling public, except to refrain from willful and wanton injury.

The leading Massachusetts case is Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561, a decision rendered by a divided court, and the opinion likens such an unregistered car to a runaway horse, citing Richards v. Enfield, 13 Gray (Mass.) 344, and Higgins v. Boston, 148 Mass. 484, 20 N. E. 105. Those citations are not precedents for Dudley v. Northampton St. Ry., because they are not actions at common law, but statutory actions against municipalities arising from defects in the highway, a distinction which will be noted later in discussing McCarthy v. Leeds, 115 Me. 134, 98 Atl. 72, L. R. A. 1916E, 1212, and McCarthy, Adm'r, v. Same, 116 Me. 275, 101 Atl. 448. To the same class belongs Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306, 27 L. R. A. (N. S.) 1156, 137 Am. St. Rep. 445.

But the decision in Dudley v. Street Railway has been followed by the Massachusetts court in subsequent cases, and is unquestionably the law of that commonwealth to-day. Chase v. N. Y. Cen. R. R., 208 Mass. 137, 158 94 N. E. 377; Love v. Street Railway, 213 Mass. 137, 99 N. E. 960; Holden v. McGillicuddy, 215 Mass. 563, 102 N. E. 923; Dean v. Boston Elevated Ry., 217 Mass. 495, 105 N. E. 616; Gould v. Elder, 219 Mass. 396, 107 N. E. 59; Koonovsky v. Quellette, 226 Mass. 474, 116 N. E. 243, Ann. Cas. 1918B, 1146; Rolli v. Converse, 227 Mass. 162, 116 N. E. 507.

It would seem, however, that this reaffirmation has been at times somewhat reluctant, because in Bourne v. Whitman, 209 Mass. 155, 172, 95 N. EL 404, 408 (35 L. R. A. [N. S.] 701), the court, in commenting upon the Dudley Case, said:

"Some of us were disinclined to lay down the law so broadly, and the opinion of the court was not unanimous; but the doctrine has been repeatedly reaffirmed and is now the established law of the commonwealth."

The Massachusetts cases rest wholly upon the interpretation of the words of the statute. They recognize and concede the common-law doctrine that the violation of a statute or ordinance does not constitute negligence per se, and does not prohibit a plaintiff from recovering in an action of negligence, unless such violation is the direct and proximate cause contributing to the act, but they hold that it does not apply. The most striking illustration, perhaps, is Bourne v. Whitman, 209 Mass. 169, 95 N. EL 408, 35 L. R. A. (N. S.) 701, cited supra, where it was held that an operator, who has violated the statute, which provides that "no person shall operate an automobile * * * unless specially licensed," etc., may recover in an action of tort; his unlawful act being regarded as punishable under another section of the statute, but not as rendering him a trespasser on the highway.

It is only in the case of nonregistration that the Massachusetts court has construed the statute so broadly, and we think they have read into the statute more than its language will permit, and have attached to the consequences of nonregistration more than the legislative enactment will warrant. The statutory provisions are almost identically the same in the two states, so that it is Impossible to distinguish the Massachusetts cases by reason of a difference in the statutes.

We therefore take up our own statute, with a view to determining whether the Legislature, in the case of nonregistration, has created a duty to other travelers on the highway, or only a public duty to be...