Day v. Isaacson

• Decision Date: 01 September 1925
• Citation: 130 A. 212
• Parties: DAY v. ISAACSON.
• Court: Maine Supreme Court

130 A. 212

DAY

v. ISAACSON.

Supreme Judicial Court of Maine.

Sept. 1, 1925.

On motion from Superior Court, Androscoggin County, at Law.

Action by Harry Day, administrator of the estate of Myer Day, deceased, against Charles B. Isaacson. Judgment for plaintiff, and defendant moved for a new trial. Motion overruled, and judgment ordered on the verdict.

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

Harris M. Isaacson and Benjamin L. Berman, both of Lewiston, for plaintiff.

Hinckley & Hinckley, of Portland, for defendant.

BARNES, J. Plaintiff's intestate died in a hospital, at Brunswick, about 12:30 in the afternoon of July 7, 1920.

He was a passenger in the automobile of the defendant on the night before, riding from Portland toward Bath, as the guest of defendant. The course was over the so-called state highway, and, as the car was about to enter Brunswick village, it left the macadam, ran for a distance on the graveled or earthen margin of the northerly side of the street, struck and broke off a cedar telephone pole, said to have been 18 or more inches through at its base, and thence ran across field or garden land, the left end of its forward axle upon or in the ground, plowing a furrow in the sandy soil to a depth of from 6 to 12 inches, and pushing "a lot of dirt right ahead of its radiator," till it stopped at a point 60 feet and 4 inches from the broken pole.

Myer Day, plaintiff's intestate, an unmarried boy about 17 years and 6 months old, was sitting, at the time of the accident, on the floor of the rear part of the automobile, near the left door. He was conscious when raised from the ground, while in the house nearest the scene of the accident, and for much of the time until he suffered death at the hospital, more than 12 hours after the accident.

The automobile was a five-passenger Buick car, constructed to carry two on the front and three on the rear seat, owned by defendant, and driven by him on the evening in question from Bath to Portland, and for a" part of the return trip.

On the return trip defendant left Portland at about 10 o'clock at night with Bennie Savage, then about 26 years of age in the right front seat, and a young woman seated between him and Savage.

On the rear seat were Mrs. Diana Isaacson, mother of defendant, Mrs. Sarah Savage, Bennie Savage's mother, and Mrs. Mamie Isaacson, while Doris Savage, a grown girl, and plaintiff's intestate sat in the laps of the occupants of the rear seat or upon the floor of the car.

Thus there were 8 passengers in the car on the fatal journey.

A few minutes after starting from Portland defendant and Savage exchanged seats, and Savage drove the car for the rest of its journey, which ended with the collision some minutes before midnigh't.

The writ is dated April 15, 1924, and is brought to recover damages for the death of the young man, as provided by law.

There is practically no conflict in the testimony as to the facts so far recited, and there is no question that the car was a new one, in use for less than a week.

The defendant was presented as a witness by the plaintiff, and testified that on the Sunday before the accident, while driving this car from Berlin, N. H., to Lewiston, he had trouble with its steering gear, and drove into a garage at Lewiston and "had it fixed up." In answer to a question as to how it happened that Savage drove for him to Brunswick, he testified:

"Well; he asked me if he could drive; said it was kind of...