Coombs v. Markley

• Decision Date: 08 October 1928
• Citation: 143 A. 261
• Parties: COOMBS v. MARKLEY.
• Court: Maine Supreme Court

143 A. 261

COOMBS

v. MARKLEY.

Supreme Judicial Court of Maine.

Oct. 8, 1928.

On Motion from Superior Court, Andro scoggin County.

Action by Harry S. Coombs against Howard A. Markley. On general motion by plaintiff Motion overruled.

Argued before WILSON C. J., and PHIL BROOK, DUNN, DEASY, BARNES, and, PATTANGALL, JJ.

George C. Webber, of Auburn, for plaintiff.

Reginald W. Harris, of Portland, and Perkins & Weeks, of Waterville, for defendant.

DUNN, J. This case comes here on a general motion by the plaintiff. The action was brought for damages to an automobile and personal injury from a collision between automobiles.

The accident happened on July 7, 1927, in broad daylight, on the paved highway in the town of Gray. On the authority of the diagram sent up with the printed case, the highway is slightly curved and runs north and south. The cement pavement is 17 3/4 feet wide. Adjoining, on the east, apparently for the convenience of a lunch room and gas and oil station, is a graveled area defined by an interior curve which approximates more or less closely to an ellipse, one fixed point of which is about 175 feet from the other, and the widest part of which, 26 feet, is directly in front of the lunch room. South of the graveled surface and near the vehicular highway is a strip of grass ground. On the west or opposite side of the road is a shoulder of earth 2 1/2 feet wide, then a ditch of that width and twice as deep, a bean patch, a mail box, a telephone pole, and an apple tree.

Plaintiff's automobile was traveling south on the west side of the road. Defendant's automobile was coming from the opposite direction on the east side. Each was properly on the way in an unobstructed course. Thus far the facts are either conceded or undisputed. From this point the parties are at difference. Around the contradictory contentions of the opposed sides is evidence, or at least the jury could have found evidence, from several witnesses sustaining the one side or the other.

The jury could have found that, when from his own car the plaintiff first saw the car of the defendant, 100 feet or more was intervening between the two cars; that the defendant's automobile then turned to the wrong side of the road and came head on towards the plaintiff's car at a rapid rate of speed until the collision occurred; this despite the efforts of the plaintiff to avoid a collision by turning his automobile so that one front wheel, if not both, was off the concrete in the direction of the ditch, where the plaintiff attested he stopped his automobile.

When a collision occurs between the vehicle of a person on the wrong side of the road and the vehicle of a person coming towards him, the presumption is that it was caused by the actionable fault of the person who was on the wrong side, but his presence on that side may be explained or justified.

The defendant maintains that, although unexplained the evidence against him might warrant a finding of negligence in the operation of his car, yet the jury was entirely justified in finding him not liable for violation of the law of the road, since that which he did was done in an emergency which no negligence of his created and in which he exercised care for the rights and safety of the plaintiff as a user of the way, comparable with what an ordinarily prudent and careful man would and does exercise under the same or similar circumstances.

In his testimony defendant stated that when he saw the plaintiff's automobile for the first time it was some 300 feet distant from his own car. With defendant, as with plaintiff, when earlier in the trial he named 100 feet, or at least 100 feet, as the distance between the two cars, the expression was one of personal judgment. The jury may have concluded that while the judgments of the witnesses did not go just alike, still with their judgments, as generally with the judgments of men and their watches, each believed his own.

Defendant swore his speed 30 miles an hour; that of the other had been given at 25 to 30 miles. Suddenly, without warning, there was testimony, an automobile, afterward referred to throughout the trial as the New Jersey car, shot out from behind plaintiff's car to cut in by it, and made at furious speed in course for and dangerously near to the defendant's car. Defendant evidenced that to avoid the New Jersey car, collision with which to him appeared only too imminent, he swerved to the left and when that car had passed defendant swung to return to his own side of the road as soon as practicable. If plaintiff's car, in front of which defendant turned, had stopped already, as had been testified, that defendant knew the fact or knew that it was stopping is not expressly shown. Before defendant's car was wholly back on its own or the...