Crocker v. Coombs

Decision Date19 November 1974
Citation328 A.2d 389
PartiesLeyton R. CROCKER and Sharon L. Crocker v. Alfred E. COOMBS.
CourtMaine Supreme Court

Wright & MacMichael by Carl R. Wright, Skowhegan, for plaintiffs.

Mahoney, Robinson, Mahoney & Morman by Lawrence P. Mahoney, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

ARCHIBALD, Justice.

As Leyton R. Crocker was crossing a public highway in Skowhegan he either walked into the right front fender of an approaching vehicle operated by the defendant or was struck by this vehicle. A Somerset County jury awarded the plaintiffs full damages proximately caused by this incident, finding that the plaintiff, Leyton R. Crocker, was free of any contributory negligence. 1 Judgment was entered accordingly and the defendant has appealed.

We deny the appeal.

The defendant raises two issues on this appeal:

(1) Was it error not to grant the defendant's motion for judgment n. o. v. since 'the uncontroverted evidence that plaintiff ran into the side of the defendant's car constitutes negligence on the part of the plaintiff as a matter of law'? 2

(2) Was it error not to grant the defendant's motion for a new trial since the presiding Justice erroneously instructed the jury that the defendant had the burden of proving the causal negligence of plaintiff, Leyton R. Crocker?

ISSUE 1

No useful purpose will be served by a detailed factual statement. Suffice it to say that the evidence bearing on the conduct of both Leyton R. Crocker and defendant was in sharp conflict. Mr. Crocker contended, and with supporting evidence, that when he started to cross the easterly, or outer, lane of a four-lane highway at a crosswalk, he had ascertained that it was free of oncoming traffic. There was evidence that the defendant pulled to the right into the easterly traffic lane from the third or fourth position in a line of traffic stopped in the inside traffic lane and, accelerating rapidly, drove his car into the intersection, striking Mr. Crocker. On the other hand, the defendant's testimony was that he was never in the stopped line of traffic but was proceeding routinely in the easterly lane approaching the intersection when Mr. Crocker stepped from the curb and walked directly into the right front fender of the defendant's car.

In response to interrogatories the jury found that the defendant was guilty of negligence which proximately caused Mr. Crocker's injuries and that Mr. Crocker was free of any causal negligence.

We test the accuracy of the denial of the motion for judgment n. o. v. by viewing the competing testimony and such reasonable inferences as may be drawn therefrom in the light most favorable to Mr. Crocker to determine if the verdict of the jury was clearly and manifestly wrong. Vaillancourt v. Gagnon, 314 A.2d 405 (Me.1974); Boetsch v. Rockland Jaycees, 288 A.2d 102 (Me.1972); MacLean v. Jack, 160 Me. 93, 198 A.2d 1 (1964); McMann v. Reliable Furniture Co., 153 Me. 383, 140 A.2d 736 (1958). Since the jury could adopt Mr. Crocker's testimony and that of the witnesses who supported it and reject the testimony in conflict therewith, it is clear to us that its ultimate conclusion was rationally founded on valid and believable evidence. Vaillancourt v. Gagnon, supra.

The Justice below correctly refused to grant the motion.

ISSUE 2

This is the first occasion we have had to consider whether the adoption of the comparative negligence statute (14 M.R.S.A. § 156) changed the pre-existing law in Maine under which the plaintiff in a negligence action was required to prove his freedom from contributory fault.

The Justice below instructed the jury:

'The defendant has the burden of proof on this issue. That is, he must prove by a preponderance of the evidence that the plaintiff . . . failed to exercise ordinary care for his own safety and that this failure was a proximate cause of any injury or damage which the plaintiff may have sustained.'

Despit the admonition of Rule 51(b), M.R.C.P., the defendant did not make timely objection to this instruction. 3

The issue generated by the above quoted instruction arose on the defendant's motion for a new trial which the Justice below denied. Thus postured, the claim of error may be considered under a motion for a new trial only 'if the error has deprived the party of a fair trial and has resulted in injustice.' Westcott v. Vickderson, 284 A.2d 902, 904 (Me.1971).

It is self-evident that if the challenged instruction correctly stated the law of Maine under the comparative negligence act, the defendant has no cause to complain. If, however, the opposite is true, the jury conceivably and rationally might have reached a different result in appraising the conduct of Mr. Crocker, which could have had a material errect on the ultimate damage award. This question has never before been presented to our Court and it would be difficult for us to say summarily that the defendant received a fair and just trial without giving consideration to the legal accuracy of the instruction. We, therefore, deem it appropriate to discuss this issue.

In 1965 the Maine Legislature enacted the comparative negligence act which, as amended, now reads:

'Where any person suffers death or damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that death or damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the jury thinks just and equitable having regard to the claimant's share in the responsibility for the damage.

Where damages are recoverable by any person by virtue of this section, subject to such reduction as is mentioned, the court shall instruct the jury to find and record the total damages which would have been recoverable if the claimant had not been at fault, and further instruct the jury to reduce the total damages by dollars and cents, and not by percentage, to the extent deemed just and equitable, having regard to the claimant's share in the responsibility for the damages, and instruct the jury to return both amounts with the knowledge that the lesser figure is the final verdict in the case.

Fault means negligence, breach of statutory duty or other act of omission which gives rise to a liability in tort or would, apart from this section, give rise to the defense of contributory negligence.

If such claimant is found by the jury to be equally at fault, the claimant shall not recover.'

14 A.R.S.A. § 156.

As we pointed out in Wing v. Morse, 300 A.2d 491 (Me.1973), the Maine Legislature made a choice between competing approaches to the concept of comparative negligence and deliberately modeled our statute on the English counterpart, the Law Reform Act of 1945, 8 & 9 Geo. 6, c. 28, s. I.

Prior to the enactment of this statute, one who sought to be compensated for injuries proximately caused by the negligence of another was under a dual burden, namely, to prove, (a) the causal negligence of the alleged tort-feasor, and (b) his own freedom therefrom. A failure to prove either was an absolute bar to any recovery. As we recognized in Wing v. Morse, supra, this rule, traditional in Maine law, resulted in an unfair hardship having to be borne by one party alone under circumstances where ordinary fairness and justice should make possible a division of this loss according to equitable principles.

Since the enactment of the comparative negligence statute we have had occasion to consider the viability of certain well entrenched doctrines and have seen fit to determine that they were no longer compatible with the concept of comparative negligence.

In Cushman v. Perkins, 245 A.2d 846 (Me.1968), we considered the doctrine of 'the last clear chance' and ruled:

'(W)hen our contributory negligence rule as an absolute bar disappeared . . . through legislative action, the last clear chance rule...

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12 cases
  • Werner v. Lane
    • United States
    • Maine Supreme Court
    • November 2, 1978
    ...where the error of which the party appellant complains has deprived him of a fair trial and has resulted in injustice. Crocker v. Coombs, Me., 328 A.2d 389 (1974). The plaintiff claims that the argument of the defendant's counsel to the jury constituted such misconduct on his part as to dep......
  • Poulin v. Colby College
    • United States
    • Maine Supreme Court
    • June 6, 1979
    ...must bear the burden of proving by a preponderance of the evidence that an injured plaintiff was causally negligent. Crocker v. Coombs, Me., 328 A.2d 389 (1974). Furthermore, the determination of such negligence is a matter exclusively for the jury, Ferguson v. Bretton, Me., 375 A.2d 225 (1......
  • Ginn v. Penobscot Co.
    • United States
    • Maine Supreme Court
    • March 5, 1975
    ...the interest of justice, recognized such an exception in appellate review of asserted grievances in jury instructions. See Crocker v. Coombs, Mr., 1974, 328 A.2d 389; Wing v. Morse, Me., 1973, 300 A.2d 491, 502; Wescott v. Vickerson, supra; Neal v. Bowes, 1963, 159 Me. 162, 189 A.2d The def......
  • Minott v. F. W. Cunningham & Sons
    • United States
    • Maine Supreme Court
    • April 28, 1980
    ...§ 156, a defendant has the burden of showing the contributory fault of a plaintiff by a preponderance of the evidence. Crocker v. Coombs, Me., 328 A.2d 389, 392 (1974); M.R.Civ.P. 8(c). Defendants in wrongful death or survivorship actions have the same evidentiary burden. In construing the ......
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