Dansky v. Kotimaki

• Decision Date: 20 November 1925
• Parties: DANSKY v. KOTIMAKI (two cases). SMALL v. KOTIMAKI.
• Court: Maine Supreme Court

130 A. 871

DANSKY

v. KOTIMAKI (two cases).

SMALL

v. KOTIMAKI.

Supreme Judicial Court of Maine.

Nov. 20, 1925.

Report from Superior Court, Kennebec County, at Law.

Three actions, the first by Isaac Dansky, the second by Blanche Small, the third by Isaac Dansky, as administrator of the estate of Abraham Smith, against the same defendant, Eino Kotimaki. On report. Judgment for defendant in first and third action, and judgment for plaintiff in second action.

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

G. P. Gallert and Perkins & Weeks, all of Waterville, for plaintiffs.

Pattangall, Locke & Perkins, of Augusta, for defendant.

DEASY, J. Between Norway Lake and Harrison, a public road running approximately north and south is crossed at right angles by another public road. On August 3, 1924, at the intersection of these roads, the automobile of the plaintiff, Dansky, going west, and that of the defendant, going north, came into collision. The plaintiff's car was at the time of the accident driven, in his service, by his stepson, a boy of 18 years named Abraham Smith. Besides the driver, there were riding in the car at the time three passengers, Mr. and Mrs. Russell and Mrs. Blanche Small. The last named was riding upon invitation of Smith, the driver. As the result of the collision the driver was killed, all of the passengers injured, and the plaintiff's car badly damaged.

With the defendant, who was driving his own car, were his father, mother, brother, and a girl of 12 years.

Three suits are before the court on report. One brought by Isaac Dansky as administrator of Abraham Smith, one by Dansky as owner of the car, and the third by Mrs Small.

In cases reported to the law court because of questions of law involved (R. S. ch. 82, § 46), this court also passes upon the facts. But it does not deem it necessary to include in its opinion an analysis of the testimony. Detailed reasons for reaching conclusions of fact have no value as precedents and uselessly incumber the reports. We shall therefore give reasons for such conclusions only in outline.

Acts of 1923, chap. 9, establishes a rule of the road applicable to this case thus:

"All vehicles shall have the right of way over other vehicles approaching at intersecting public ways from the left, and shall give the right of way to those approaching from the right."

As before stated, the plaintiff's car was going west and the defendant's north. The plaintiff's car therefore had the right of way.

The statute required the defendant to "give the right of way" to the plaintiff who was "approaching from the right." This circumstance did not absolve the plaintiffs servant from the duty of exercising due care. It does not establish absolutely the defendant's liability. But, nothing else appearing, it sustains the burden of proving the defendant's negligence, which burden primarily rested upon the plaintiff. It creates a presumption in favor of the plaintiff which the defendant must overcome if he would prevail.

"It has frequently been decided that violation of the law of the road is prima facie evidence of negligence on the part of the person disobeying it." 13 R. C. L. p. 287. See Brillinger v. Ozias, 186 App. Div. 221, 174 N. Y. S. 282; Black v. Mark, 273 Pa. 138, 116 A. 656; Gibbs v. Almstrom, 145 Minn. 35, 176 N. W. 173, 11 A. L. R. 227; Harris v. Johnson, 174 Cal. 55, 161 P. 1155, L. R. A. 1917C, 477, Ann. Cas. 1918E, 560; Hiscock v. Phinney, 81 Wash. 117, 142 P. 461, Ann. Cas. 1916E, 1044; Neal v. Rendall, 98 Me. 73, 56 A. 209, 63 L. R. A. 668.

In his attempt to overcome the presumption against him the defendant has not succeeded. He did not give the right of way to the plaintiff as the statutory rule commands. There is indeed a conflict of evidence as to which car ran into the other. The plaintiff says that the defendant drove out from the intersecting street, on the left, and rammed his car. The defendant's version is that he drove from the left to the center of the east and west road, and at the time of the collision was "just coming to a stop" so as to give the plaintiff's car an opportunity to pass by swerving to the side of the road. But this does not satisfy the rule. Upon either theory the defendant was negligent.

A motorist approaching to enter upon a highway crossing is not under ordinary circumstances required to stop. To listen may avail nothing. But he must look. The fact that at least some automobiles do not herald their approach with the rumble of a railroad train, and the further fact that there are vastly more automobiles than trains, make the duty of looking upon entering a highway intersection even more imperative than at a railroad crossing.

The defendant was acquainted with the the road and with the crossing. He saw, or by reasonable vigilance might have seen; the plaintiff's car in time to "give the right of way" to it. We are convinced that the defendant either...