Cole v. Wilson

• Decision Date: 21 September 1928
• Parties: COLE v. WILSON.
• Court: Maine Supreme Court

143 A. 178

COLE

v. WILSON.

Supreme Judicial Court of Maine.

Sept. 21, 1928.

On Motion from Supreme Judicial Court, Knox County at Law.

Action by Mary M. Cole against Alexander K. Wilson. Verdict for plaintiff, and case was brought to the Supreme Judicial Court on motion. Motion overruled.

Argued before WILSON, C. J., and PHILBROOK, DEASY, BARNES, and PATTANGALL, JJ.

Charles T. Smalley, of Rockland, for plaintiff.

Alan L. Bird, of Rockland, for defendant.

PATTANGALL, J. On motion. Damages for personal injury sustained by pedestrian overtaken and struck by automobile. Verdict for plaintiff in the sum of $4,849.

Plaintiff, accompanied by four grandchildren, was walking toward her home about 10 p. m. on a dark, foggy July night. For a portion of the way they walked on the sidewalk, which they finally deserted on account of its condition, and were walking in the highway at the time of the injury. Three of the grandchildren preceded the plaintiff, one followed her, all walking in single file.

The highway was of concrete, 20 feet in width, with shoulders of gravel about 3 feet wide, along the edge of which was a narrow strip of grass and beyond the grass a deep ditch.

The sidewalk was built of crushed limestone and is described as being muddy, wet, and soft in places, and in part composed of fine chips and rocks, uncomfortable to walk upon and not generally used at the time of the injury, although it had been, to some extent, repaired during the previous month.

The testimony was conflicting as to just where, on the highway, plaintiff and the children were walking, but it was on evidence that they proceeded along the graveled shoulder on the right-hand side of the road, and plaintiff testified that just previous to being struck by defendant's car she had stepped back onto the grass to the very edge of the road.

Defendant was driving toward his home when he overtook plaintiff. There was considerable traffic on the highway at the time, cars moving in both directions, and the roadway was used by pedestrians. Defendant was proceeding at a moderate rate of speed, his lights and brakes in good order.

Shortly before the occurrence which is the subject of complaint, he had passed a car going in like direction, and in doing so had temporarily driven to the left side of the way, but immediately resumed his proper place on the extreme right. The lights from the car which he had passed shone through the rear window of his car, and, combined with the lights of two approaching cars, blinded him. Also the fog had dampened his windshield and thereby somewhat obscured his vision.

He summarized the situation in these words:

"Lights coming in the rear and front blinded me so that I couldn't see very well, and the windshield was covered with water and I began to slow my car up all I could and reached for my windshield wiper so I could see better, and as I did so I struck some object. I didn't know what it was. I heard some one scream. I applied my brakes and stopped my car in about 20 feet. If it had not been for the lights, I could see fairly well to follow the other cars along through that space."

It would appear, then, that had it not been for the glare of the lights in front and rear, defendant would probably have seen plaintiff, in spite of the darkness and fog, in time to have avoided the accident, either by stopping his car or by swerving slightly to the left.

Under these circumstances, the jury was [justified in finding him guilty of negligence in not stopping his car. Not on account of the fog. The driver of an automobile encountering a heavy fog while on his way home may proceed at a reasonable speed and is not obliged to stop and wait for the fog to lift in order to escape a charge of negligence. He must, however, exercise a degree of care consistent with the existing conditions. Johnson v. State of New York, 104 Misc. Rep. 403, 175 N. Y. S. 299, 303. But because of the blinding glare of the lights. If the operator of a machine is blinded by the light from another vehicle so that he is unable to distinguish an object in front, reasonable care requires that he bring his vehicle to a stop and a failure to do so justifies a charge of negligence. O'Bierne v. Stafford, 87 Conn. 354, 87 A. 743, 46 L. R. A. (N. S.) 1183; Jacquith v. Worden, 73 Wash. 349, 132 P. 33, 48 L. R. A. (N. S.) 827; Buzick v. Todman, 179 Iowa, 1019, 162 N. W. 259; Jolman v. Alberts, 192 Mich. 25, 158 N. W. 170; Hammond v. Morrison, 90 N.

J. Law, 15, 100 A. 154; Topper v. Maple, 181 Iowa, 786, 165 N. W. 28; Woodhead v. Wilkinson, 181 Cal. 599, 185 P. 851, 10 A. L. R. 291.

It is possible, of course, to conceive of circumstances, such as the too-close proximity of a car in the immediate rear of the confused driver, which might excuse him from making an abrupt and immediate stop. There is no evidence of such a situation here, and, should such an excuse be offered, its validity and weight would be for the jury.

The defendant, in his pleadings, set up the defense of contributory negligence. There is no occasion, in this state, to plead that defense specially during the lifetime of the plaintiff....