Daughraty v. Tebbets

• Decision Date: 06 April 1923
• Parties: DAUGHRATY v. TEBBETS.
• Court: Maine Supreme Court

120 A. 354

DAUGHRATY

v. TEBBETS.

Supreme Judicial Court of Maine.

April 6, 1923.

On Motions from Supreme Judicial Court, Oxford County, at Law.

Action by Lou M. Daughraty, administratrix, against Leilia Tebbets. On general motion to set aside verdict for plaintiff and special' motion based on alleged interference with jury by court officers. Motions overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, MORRILL, WILSON, and DEASY, JJ.

Alton C. Wheeler, of South Paris, and Frederick R. Dyer, of Portland, for plaintiff.

Frank A. Morey, of Lewiston, and Walter L. Gray, of South Paris, for defendant SPEAR, J. This ease comes up on a general motion and a special motion based upon the alleged interference with the jury by a court officer. The case involves an automobile action in which the plaintiff's intestate, who will hereafter be called the plaintiff, received injuries on October 29, 1921, from which he died on November 4th following. A verdict was found in favor of the plaintiff, and the general motion is to set aside that verdict. No exceptions were taken, and the charge of the jury must be regarded as the proper and adequate statement of the law. The burden which the proponent of a motion to overturn a verdict assumes has been too long and too often declared to require citation. There is very little controversy in the present testimony. However, wherever a controversy did arise, in determining the issue the law court must proceed upon the theory that the jury had a right to accept all the testimony of the plaintiff's side as true, and to reject all the testimony of the defendant's side as untrue, mistaken, or unsatisfactory, unless the testimony, including the circumstances and probabilities, reveals a situation that proves the testimony on the plaintiff's side to be inherently wrong.

The facts determined from the testimony are substantially as follows: On October 29, 1921, Mr. Lyman H. Daughraty, the plaintiff, was proceeding in a northerly direction on the cement highway leading from Lewiston toward South Paris. He stopped his Studebaker automobile on the right-hand side of the cement strip, and presumably obtained a pail of water for the radiator of his car by crossing to the Charles house, on the left-hand side of the road, and recrossing the road to his automobile, the cement part at this point being 18 feet in width, and having a strip of gravel road several feet wide on each side of the cement. When Mr. Daughraty started toward the house, presumably to return the empty pail, he was struck by the defendant's car, also proceeding northerly. His body was carried 50 feet before it fell from the car. He was left in the dooryard of the Charles place, while the defendant's automobile continued 18 feet further before it was brought to a stop, after turning nearly a right angle into the Charles dooryard and plowing the turf out of the ground to a depth of 6 or 8 Inches and covering an area of 2 1/2 feet in circumference. Upon the practically undisputed facts two questions arise: First, was the defendant car negligent? Second, if so, was the plaintiff guilty of contributory negligence? in view of the numerous fatalities that are daily occurring, due to the mania for overspeeding automobiles, and the lack of control due thereto, whenever an automobile or team appears to be stationary upon the road or roadside, the standard of due care on the part of an operator in approaching a car or team thus standing should be made commensurate with the danger involved. We are therefore of the opinion that it is wise to enunciate a rule that will save life rather than one that will jeopardize it, and that it should be held, in order to meet the proper standard of due care, in approaching a stationary car or team, that the operator of the moving car should be charged with the duty of observing whether any person or persons are connected with such car or team, and should have his car under such control, in passing such car or team, as to avoid an accident with any person or persons who may be around about such car or team, or who attempts to cross the road in front of the oncoming car, provided such person or persons are themselves in the exercise of due care. The force of this rule applies with emphasis when the moving car is approaching the standing car or team from the rear. With the top up, as is now well-nigh the universal custom, the standing car is more likely than not to...