Day v. Cunningham

• Decision Date: 30 June 1926
• Citation: 133 A. 855
• Parties: DAY v. CUNNINGHAM.
• Court: Maine Supreme Court

133 A. 855

DAY

v. CUNNINGHAM.

Supreme Judicial Court of Maine.

June 30, 1926.

On Motion from Superior Court, Penobscot County, at Law.

Action by Alberta N. Day, pro. ami, against Ralph L. Cunningham. Verdict for plaintiff. On defendant's general motion for new trial. Motion overruled.

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

William Cole, of Bangor, for plaintiff.

George E. Thompson and Ross St. Germain, of Bangor, for defendant.

DEASY, J. Automobile accident case. Time of accident: November 26, 1924, at about 5:30 p. m. Place: South Main street, Brewer. The plaintiff has a verdict. The defendant presents a general motion for new trial.

Just before the happening of the accident, Mrs. Lena Day with her three children, Alberta, the plaintiff, 8 years old, a boy of 6 and a babe in arms, alighted from the forward right-hand door of a south-bound trolley car. Having to reach the eastern side of the street, the little group waited until the street car had started and gone by them and then passed its rear and walked toward the eastern curb. Alberta, the plaintiff, was knocked down and injured by a north-bound automobile driven by the defendant.

The duties of a motorist approaching the rear of a stationary street car and desiring to pass it are, in part at least, regulated by statute. Act of 1921, c. 211, § 9. He is required to "bring it (the automobile) to a full stop."

But when, as in the instant case, the automobile is approaching to meet a street car, the statute does not purport to apply. In such case the mutual rights and duties of the parties depend upon the common law.

By the common law the motorist and pedestrian must each exercise due care. Huddy on Automobiles (6th Ed.) § 414.

But the due care rule demands of the motorist greater vigilance than is required of the pedestrian.

The care to be exercised by him who drives an automobile upon the public streets must be "commensurate with the danger to be avoided" (Savoy v. McLeod, 111 Me. 235, 88 A. 721, 48 L. R. A. [N. S.] 971), "correspond with the capacity to injure" (Weidner v. Otter, 171 Ky. 167, 188 S. W. 335), be "commensurate with the dangers arising from a lack of it" (Aiken v. Metcalf, 90 Vt. 196, 97 A. 669).

The jury was warranted in finding the defendant negligent. According to his own testimony, "the light was blinding me." Thereupon he put the car in neutral and allowed it to run by its own momentum 13 to 15 miles an hour—i. e., 19 to 21 feet per second—until almost the instant of the impact, when, seeing the little girl, he applied his emergency brake and reverse gear, thus stopping his machine in three car lengths from the point of collision.

There was evidence introduced by the defendant tending to show that he "saw them (the plaintiff and her companions) get off and saw them crossing the street."

This the defendant denies. But his own testimony is sufficient to justify the finding of negligence. The jury may have reasoned that the defendant should have applied his brake when he became blinded by the street car's glaring headlight, without waiting until he saw the plaintiff (to quote his language) "right out in front of my radiator," when it was too late to save her. Such reasoning was not erroneous.

"It is the duty of a driver of an automobile to stop his car when for any reason he cannot see where he is going." Buddenberg v. Kavanagh, 17 Ohio App. 252.

"No man is entitled to operate an automobile through a public street blindfolded. When his vision is temporarily destroyed [by a glaring light], it is his duty to stop his car." Hammond v. Morrison, 90 N. J. Law, 15, 100 A. 154; Osbun v. De Young, 99 N. J. Law, 204, 122 A. 809.

For another reason, the jury were justified in charging the defendant with negligence. Independently of the statute, which does not apply in the pending case, the law requires increased care on the part of the motorist in passing a street car which has stopped to take in or land passengers. Huddy (6th Ed.) § 423. Due care is care that is "commensurate with the danger to be avoided." Savoy v. McLeod, supra.

"Not only must he expect passengers on the side of the car from which they alight, but he must anticipate that some passengers may pass behind the car to the other side." Huddy (6th Ed.) 423; Johnson v. Johnson, 137 Minn. 198, 163 N. W. 160; McMonagle v. Simpers, 267 Pa. 117, 110 A. 83.

The defendant in his testimony evinced perfect familiarity with the statutory rule which applies only when the automobile and street car are headed the same way (Act of 1921, c. 211, § 9), but both by language and conduct he seemed oblivious of any duty to persons circumstanced as was the plaintiff.

Nor is the defense of contributory negligence established. A pedestrian about to cross a road, or, as in the present case, to walk from a street car to the sidewalk, is not as a matter of law bound to look and listen. Shaw v. Bolton, 122 Me. 234, 119 A. 801. But, if the road is a city or village street having considerable automobile traffic, failure to look for approaching vehicles may be strong evidence of negligence. Huddy (6th Ed.) § 549.

There is indeed no evidence that the plaintiff herself looked up or down the street, either before or after starting. But she was only 8 years old. She was accompanied by her mother who directed her movements. When her mother told her to go, she went toward the sidewalk.

The law does not expect of a child an adult's caution. But it does require of children, even of the plaintiff's age, that degree of care "which ordinarily prudent children of their age and experience are accustomed to use under similar circumstances." Crosby v. R. R. Co., 113 Me. 274, 93 A. 745, L. R. A. 1915E, 225; Moran v. Smith, 114 Me. 55, 95 A. 272; Colomb v. Railway, 100 Me. 420, 61 A. 898; Levesque v. Dumont, 116 Me. 25, 99 A. 719; Huddy (6th Ed.) 478.

An ordinarily prudent child of 8 years, if unaccompanied by a parent or other custodian, would probably, before crossing a city or village street, look for approaching automobiles. This children are taught to do in homes and schools. But the jury may well have found that an ordinarily prudent and intelligent child of 8 years, accompanying her mother, would confidently rely upon hermother's judgment, and unhesitatingly follow her mother's directions as to the place and time of crossing streets. If the jury so found, they committed no error of law. The defendant is not entitled to a new trial by reason of any contributory negligence of the plaintiff herself.

But it is urged that Mrs. Day, the mother of the plaintiff, failed to exercise due care, and that her negligence is imputable to her daughter. If the plaintiff had been a...