Cooper & Co. v. Am. Can Co.

• Decision Date: 27 February 1931
• Court: Maine Supreme Court
• Parties: COOPER & CO. v. AMERICAN CAN CO.

153 A. 889

COOPER & CO.

v. AMERICAN CAN CO.

Supreme Judicial Court of Maine.

Feb. 27, 1931.

On Motion from Superior Court, Waldo County.

Action by Cooper & Company against the American Can Company. On general motion after verdict for plaintiff.

Motion sustained, and new trial granted.

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

Hinckley, Hinckley & Shesong, of Portland, for plaintiff.

Wm. B. Mahoney and Theodore Gonya, both of Portland, for defendant.

BARNES, J.

Plaintiff, by virtue of the Workmen's Compensation Statute (Rev. St. 1916, c. 50, § 1 et seq. as amended) in behalf of the dependent widow, recovered a verdict in the superior court, after a collision that resulted in the instant death of John M. Crosby.

The appeal is on the general motion. Mr. Crosby was, at the time of the accident, an employee of plaintiff and his work was to accompany his son, the driver of plaintiff's motortruck conveying a load of lumber from Belfast to Searsport over the main highway.

The accident occurred about 9 in the morning of January 8, 1929, in a sparsely settled section, on a modern country road.

The truck was loaded with 2x4 lumber, piled about a foot wider than the cab on each side, and 41/2 feet high, the top of the load being from 6 to 7 feet above the surface of the road.

The accident occurred a bit more than a mile easterly from the bridge at Belfast, at a point where the road runs on a right line, except that it swerves slightly to the right. The slope, if any, is downward toward Searsport.

The road here was of graveled construction, about 32 feet wide, a 20-foot strip in its center being surfaced with tarvia.

The day was fair and the surface of the highway free from snow or ice.

As plaintiff's truck proceeded, engine trouble became apparent and the driver pulled over to his right and brought it to a stop.

It stood with its left tires on the very margin of the tarvia.

The brake did not hold the truck motionless, and while in his seat in the cab, the driver bade Mr. Crosby get a stone to trig its wheel. When the latter failed to loosen a stone from the gravel to which it was frozen, the driver suggested that he go round the truck to the tool box under its left side and get a hammer or other tool to loosen the stone.

At this time the agent of defendant, driving its Chevrolet coupe, was coming from the rear, and as he approached the truck had a clear view, unobstructed by any obstacle or vehicle, except plaintiff's stationary truck.

In acting on the suggestion of the truck driver that he get a tool, Mr. Crosby went around the front of the truck, took two steps on the tarvia, and was struck and killed by defendant's automobile. Up to this point there is no dispute.

The only persons near enough to him to testify to Mr. Crosby's last steps were the two motor drivers.

Plaintiff's driver testified that he took two steps beyond the truck's left front bumper, flinched back, though his feet did not move, and was struck by the automobile that flashed by the truck. He did not state whether Mr. Crosby was moving out at right angles with the road or in the direction of the tool box, nor is he definite and certain that two steps were taken, saying that his position when struck was not more than "two or three feet by the bumper." He testified that he heard no sound of horn.

Defendant's driver testified that he was proceeding "around thirty miles an hour"; that he sounded his horn when about 60 feet behind the truck; that he was going by the truck, "within passing distance," when the man appeared a pace or two in front of his car and was struck.

There is no evidence that Mr. Crosby was seen by defendant's driver before he stepped out by the bumper, and from testimony as to the truck, its load, and the situation as the driver approached, it is likely he was not seen until then.

Another man, driving a bus from Searsport, came on the straightaway, with unobstructed view for about a quarter of a mile as he approached the truck, arriving to assist in caring for the injured man before defendant's driver had turned his car and returned. This man's testimony is not helpful, but we are satisfied that his first glimpse of Mr. Crosby was as his body rebounded after the impact.

On the facts as we believe the jury must have found them we have the case of a pedestrian presenting himself from a position of complete obscurity, on that part of a highway which both he and defendant's driver may lawfully occupy, provided each is in the exercise of due care. Around a motor vehicle temporarily halted on its right-hand margin of a way, for inspection or minor repairing, in the daytime and on a country road, it may be thought there should be a zone of safety for its occupants, as there is about a trolley car when stopped in a city street, the so-called humanitarian doctrine, but our court has not yet attempted to delimit such a zone.

There is no evidence that defendant's driver saw the truck in motion, or any persons about it. It may be a negligent act to drive so near an apparently abandoned truck as to strike its cab door, should it be opened. We do not know how near the cars were when the automobile went by. The only testimony before us is that it went by the truck "within passing distance." Whether the clearance was inches or feet we do not know.

There can be no recovery unless there was negligence on the part of defendant's driver. But, since no willful or wantonly reckless act is claimed, there can be no recovery if Mr. Crosby stepped out by the bumper from a position of safety and obscurity, without taking the precautions that due care for his own protection demanded.

In the protection of his person or property when about to emerge from a position of security and step onto a traveled highway a pedestrian must exercise due care. The decisions are unanimous on this point.

He must do what the ordinarily Intelligent and prudent person in like situation would do.

Usually when about to step from a city curb or country road margin on a highway to cross or to traverse It, a pedestrian is not charged with the duty to look and listen. Shaw v. Bolton, 122 Me. 232, 119 A. 801.

But the case at bar is specific and is not ruled exclusively by general principles.

In this case, both parties of right might claim to occupy the side of the highway where the accident occurred. If both present themselves to occupy the same spot at a given instant there may be peril for either. This would seem apparent to the man of ordinary inlelligence. What, under like circumstances, would the ordinarily prudent man do? What the latter would do, Mr. Crosby must do, or, failing in this, if injured, his injury must be suffered without lawful recovery from the person liable for the acts of one who may collide with him.

The testimony shows that, so far as defendant's driver was concerned, Mr. Crosby was unseen as he approached that driver's course walking by the front of the truck. The closely piled lumber shut off from the driver any glimpse of the moving man, until he stepped on the tarvia of the road. Brakes were set, but the unfortunate man stepped into the path of the swiftly moving car, and the result was inevitable.

It may be helpful in determining liability of the automobile driver to discuss the question of proximate cause of injury.

For, if it be assumed that defendant's driver were guilty of negligence, because operating without due care for other occupants of the highway (which we do not decide), it would be necessary, under circumstances in many points resembling those here considered, to determine what was the proximate cause of the injury.

If the jury, in this case, determined the proximate cause, and failed as they decided they found it, their verdict may not stand.

It is claimed by the pleadings in this case that the proximate cause of the injury was contributory negligence on the part of Mr. Crosby.

The proximate cause of an injury must be referred to negligence when it appears that such injury was the natural and probable consequence of such negligence, and should have been foreseen by a person of ordinary intelligence and prudence, in the light of the attending circumstances.

The elements of natural and probable result, and that the result ought to have been foreseen by a person of ordinary intelligence and prudence in the light of the attending circumstances, are distinguishing characteristics when the acts of the injured one are studied.

Whether his negligence was a proximate cause of this accident depended on whether he exercised due care under the attending circumstances.

True this was a question for the jury. But if decision of this question was not made by the jury, or if its decision by them was contrary to that at which reasonable men, fully informed of the conditions under which the accident occurred, and of the legal rights of passing automobilists, and fully cognizant of the duty incumbent on the deceased to safeguard his own person as he passed from a position of safety and obscurity to the open roadway and into the path of automobiles lawfully on his side of the street, would have arrived, injustice may have been done to the owner of the automobile.

A verdict cannot be allowed to stand unless based on testimony and evidence, and on reasonable inferences logically drawn from the testimony and physical facts duly proven to have existed.

"Testimony to sustain a verdict must be credible, reasonable, and consistent with probabilities and with the circumstances proven by uncontradicted testimony." Page v. Moulton, 127 Me. 80, 141 A. 183, 185.

If the evidence would satisfy men of average intelligence and qualified for jury duty, under proper instructions from the court, that Mr. Crosby was negligent in approaching the tarvia of the road as he did, and stepping out on it, such men must find him guilty of negligence which proximately contributed to his injury.

This...