Corbett v. Curtis

• Decision Date: 04 January 1967
• Citation: 225 A.2d 402
• Parties: Elizabeth M. CORBETT, Walton Corbett v. Olive CURTIS.
• Court: Maine Supreme Court

Page 402

225 A.2d 402

Elizabeth M. CORBETT, Walton Corbett v. Olive CURTIS.

Supreme Judicial Court of Maine.

Jan. 4, 1967.

Frank W. Linnell, Auburn, for plaintiffs.

John A. Platz, Lewiston, for defendant.

Before WILLIAMSON, C. J., and TAPLEY, MARDEN and DUFRESNE, JJ.

TAPLEY, Justice.

These cases are before us on defendant's appeals from denial of motions for judgments notwithstanding the verdicts, and for new trials based on refusal of the presiding Justice to give certain requested instructions to the jury. The cases were tried in the Superior Court, within and for the County of Oxford, resulting in judgments for the plaintiffs. Plaintiff, Elizabeth M. Corbett, a lady of 54 years, drove from her home in South Paris to the defendant's residence in West Paris for the purpose of enabling the defendant, Mrs. Curtis, who was at the time 67 years of age and in possession of a learner's permit, to practice her driving. Mrs. Curtis had previously taken driver's training instructions and had done some driving but felt that she needed more practice in turning and backing the car. Upon the plaintiff's arrival at the home of Mrs. Curtis in West Paris the two ladies entered the defendant's automobile. Because of the steepness of the driveway Mrs. Corbett backed the car out of the yard and after it got on Pioneer Street Mrs. Curtis took over the operation of the motor vehicle with Mrs. Corbett seated on the passenger's side of the front seat. With Mrs. Curtis driving they proceeded along Pioneer Street and entered the main highway, then they went to the home of one Thalia Curtis who lived nearby, briefly stopping for the purpose of inquiring about directions, after which they continued on to a one-lane dirt road which led toward a bridge spanning Little Androscoggin River. Their destination was a gravel pit on the other side of the river in which Mrs. Curtis understood there was ample room to practice turning and parking the car. At a point near the bridge defendant Curtis, who was operating the car, stopped and discussed with plaintiff Corbett the question as to whether she should continue to operate the car across the bridge. After a brief discussion of the question it was decided that Mrs. Curtis should continue in the operation of the car. According to the photograph of the bridge it was an old wooden bridge sufficient in width to accommodate an automobile. As the car was being driven over the bridge it suddenly veered to the right at about midway across and dropped into the river a short distance below. Neither party could explain why the car suddenly changed its direction and went off the bridge into the river.

The defendant contends (1) that the doctrine of assumption of risk applies; (2) that plaintiff was guilty of contributory negligence as a matter of law; and (3) that the evidence was insufficient to warrant a finding that negligence of defendant was proximate cause of plaintiff's injuries.

The defendant was operating the motor vehicle by right of a learner's permit under provisions and by authority of 29 M.R.S.A., Sec. 537:

'No person shall operate a motor vehicle upon any way in this State unless licensed according to this Title. This section shall not prevent the operation of a motor vehicle by an unlicensed person, not less than 15 years of age who holds an instruction permit, if riding beside a licensed operator in said vehicle for the purpose of becoming familiar with the use and handling of a motor vehicle preparatory to taking out license for driving, and provided such unlicensed person has not theretofore had a license revoked, suspended or finally refused.'

The necessity for the plaintiff being in the automobile on this occasion was because of the statutory requirement of Sec. 537. According to the pre-trial order, 'The purpose of the ride was to enable defendant to practise driving.' The intent of Sec. 537 is well expressed in Blanchard v. City of Portland, 120 Me. 142 where the court said, on pages 145, 146, 113 A. 18, on page 19:

'This provision was evidently intended to enable an inexperienced person to learn to operate a motor vehicle by operating it under the supervision and instruction of a licensed operator. The words, 'riding with or accompanied by a licensed operator' mean that the licensed operator shall ride with or accompany the unlicensed person, under such conditions and in such proximity that he can maintain the supervision over the unlicensed person necessary for safety, and render assistance, if need be, with reasonable promptness. * * * It is also clear that the unlicensed operator must be operating the vehicle in company with the licensed operator 'for the purpose of becoming familiar with the use and handling of a motor vehicle, preparatory to taking out license for driving,' not necessarily for the sole purpose of becoming familiar with the vehicle, but that purpose must be present in his mind.'

Under the particular circumstances of this case, neither the plaintiff nor the defendant are able to explain what caused the car to suddenly veer off the bridge and into the stream below. The plaintiff must first prove the negligence of the defendant and it is apparent that it can only be done through the doctrine of res ipsa loquitur.

'The maxim of res ipsa loquitur, 'the thing itself speaks,' might, in practice, be translated, 'the accident spells negligence.' It does not dispense with the requirement that the one who alleges negligence must prove it. It is a rule of evidence that relates to the mode of proof. It is applicable, where there has been an unexplained accident, and the instrument that caused the injury was under the management or control of the defendant, and in the ordinary course of events the accident would not have happened if the defendant had used due care.' (emphasis supplied). Stodder v. Coca-Cola Bottling Plants, Inc., 142 Me. 139, at 142, 48 A.2d 622, at 624.

'The doctrine of res ipsa loquitur is not substantive law. It does not need to be alleged in the declaration. It is a rule of evidence which warrants, but does not compel an inference of negligence. The doctrine does not affect the burden of proof. It merely shifts the burden of evidence. The defendant, who knows or should know, must explain. The rule applies where the accident is unexplained and the instrument causing the injury was under the management and control of the defendant, and the unexplained accident is one which does not ordinarily occur if due care is used.' (emphasis supplied). Cratty v. Samuel Aceto & Co., 151 Me. 126, at 132, 116 A.2d 623, at 627.

'Where an automobile, and the operation thereof, are exclusively within the control of the defendant, whose guest is injured, and it is not reasonably in the power of such guest to prove the cause of the accident, which is one not commonly incident, according to everyday experience, to the operation of an automobile, the occurrence itself, although unexplained, is prima facie evidence of negligence on the part of the defendant. Res ipsa loquitur-the thing speaks for itself.' Chaisson v. Williams, 130 Me. 341, 346, 156 A. 154, at 157.

If plaintiff fails to prove the elements of res ipsa loquitur she cannot prevail. The record shows that the defendant was operating the vehicle and that without warning it suddenly veered off the bridge for no apparent reason. In addition to these elements she must prove the defendant had 'exclusive control' as in Chaisson, supra, or as it is expressed in Stodder, supra and Cratty, supra, 'management or control.' This court in J. & Jay, Inc. v. E. Perry Iron & Metal Co., Inc., 161 Me. 229, 210 A.2d 462, in considering the application of res ipsa loquitur, cites with approval those cases requiring the vehicle to be under the 'management and control' of the defendant. It also cites Chaisson v. Williams, supra, which holds that the vehicle must be under the 'exclusive control' of the operator. In view of the fact that some states have rule of 'exclusive control,' we think that where Maine has the maxim of res ipsa loquitur that the requirement of 'under management and control' is preferable to 'exclusive control.' The pertinent question now is, did the defendant have management and control of the vehicle at the moment it, for some unexplained cause or reason, suddenly veered off the bridge?

The negligence charged against the defendant must be based on action within the defendant's control. J. & Jay, Inc. v. E. Perry Iron & Metal Co., Inc., supra. It was a factual question for the jury to determine whether or not the defendant had the management and control of the vehicle at that moment when the car suddenly veered. This is true in spite of the fact that the statute required the plaintiff to maintain supervision over and render assistance, if need be, to the defendant in her operation of the motor vehicle. After the car driven by the defendant started across the bridge the testimony described the action as follows:

'Q. Now, you started ahead. When you started ahead, did Mrs. Corbett assist you in any way?

A. Yes, because there was a question of turning that sharp turn.

Q. Yes.

A. And she helped me to make the sharp turn.

Q. And then you got straightened out, started across the bridge, is that right? And what was Mrs. Corbett doing then?

A. She was sitting there.

Q. Sitting in the passenger's side?

A. Yes.

Q. When-Do you know what caused the accident?

A. No.

Q. You don't-what did happen? What was the next thing you did, or remember happening?

A. The next thing, we were in the river.

Q. You don't know how you got there. Did you hear a crash?

A. Yes.

Q. Driving straight ahead?

A. Yes.

Q. Having any conversation with Mrs. Corbett?

A. No.'

There is testimony in the case which plainly demonstrates the fact that the plaintiff, Mrs. Corbett, as they approached the bridge asserted some control over the motion of the car by putting her hand on the wheel guiding the car to the right. There is nothing in the...