Dumas v. MacLean, 7138.

• Decision Date: 20 December 1968
• Docket Number: No. 7138.,7138.
• Citation: 404 F.2d 1062
• Parties: Charles J. DUMAS, Defendant, Appellant, v. Pamela A. MacLEAN, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

404 F.2d 1062 (1968)

Charles J. DUMAS, Defendant, Appellant, v. Pamela A. MacLEAN, Plaintiff, Appellee.

No. 7138.

United States Court of Appeals First Circuit.

Heard November 5, 1968.

Decided December 20, 1968.

Richard E. Dill, Portsmouth, N. H., with whom James P. Nadeau, Jr., and Boynton, Waldron & Dill, Portsmouth, N. H., were on brief, for appellant.

Paul R. Cox, Dover, N. H., with whom Burns, Bryant, Hinchey & Nadeau, Dover, N. H., was on brief, for appellee.

Before STALEY,^* McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This appeal is from a plaintiff's verdict in an automobile collision case. On the night of February 9, 1964, plaintiff and a friend drove into the Howard Johnson's restaurant just off the rotary traffic circle and the Route 1 by-pass in Portsmouth, New Hampshire. They were driving from Maine to Boston where both were students. While at the restaurant plaintiff's friend called a classmate in Portsmouth who was going to ride back with them and obtained directions to her home. On leaving the restaurant about 10:30 p.m. plaintiff took the wheel and they headed out one of the exits from the restaurant parking lot. They proceeded down a public road known as "the old by-pass road," passing the Howard Johnson Motel and a street known as Boyd Road, both of which were situated on their left. A directional sign standing on the right side of the highway just before they reached Boyd Road gave directions for Portsmouth to the left and Boston, Portland and Dover to the right. Plaintiff saw this sign but not Boyd Road, and continued on a short distance until the road forked. There was no sign at the left fork but on the right there were two signs which read "KEEP (arrow) RIGHT" and "ONE WAY," respectively. Plaintiff mistakenly took the left fork. This was not the way to Portsmouth but was a one-way exit from the Route 1 by-pass to Howard Johnson's. When she reached the Route 1 by-pass she stopped and seeing no traffic, turned left onto the road. Plaintiff testified that she thought this was a two-lane road with a broken line down the middle indicating two-way traffic. After entering the highway she kept to the right and had driven about four car lengths when she noticed the word "SLOW" painted on the road upside down. Realizing for the first time that she was moving against the normal flow of traffic, plaintiff brought her car to an immediate stop. Almost simultaneously she saw the headlights of an approaching car in the lane to her left. The driver of this car, one Gross, seeing plaintiff's predicament, slowed down and flashed his headlights to warn her. She testified that she acknowledged this signal by flashing her own headlights off and on. There is conflicting evidence, however, as to whether in fact she extinguished her headlights altogether. At any rate Gross testified that when he first flashed his headlights he was about 800 feet from plaintiff's car. Since the Gross car presented no immediate danger, plaintiff put her car in reverse and staying in the same lane began backing up, it being her intention to back up beyond her point of entry and then drive up the road through which she had entered. During the entire time plaintiff was backing up both she and her passenger were looking in the direction from which they had come.

At or about the same time the defendant, who was traveling in the same direction as Gross, came upon the scene. When Gross was about 200 feet from the plaintiff he observed the defendant approach rapidly from the rear and overtake him. At this point Gross pulled off the road to his right to give defendant room to avoid hitting the plaintiff. The road was twenty-three feet wide. Plaintiff's and defendant's vehicles were only six feet in width. In his deposition defendant admitted that to the best of his recollection he "was going 50 or 55" when he hit the 35 mile an hour zone and then "dropped to 45 or 50." When defendant came within thirty or forty feet of the rear of the Gross car he realized he could not stop and immediately swung into the left lane to avoid hitting Gross. The record indicates that when the defendant passed Gross the latter was about 200 feet from plaintiff's vehicle. After passing Gross defendant never got back into the travel lane and a few seconds later hit plaintiff's vehicle head-on, leaving brake marks of 128 feet behind him. Defendant was uncertain as to how much time expired between the time he passed the Gross car and the time of impact. His answer was "a couple of seconds, three or four." He admitted that he could have controlled his car if he hadn't been speeding, and when asked how fast he was going when he hit plaintiff, replied that "a good guess would be fifty miles an hour."

The record shows that the road was clear and dry. It was straight for a considerable distance and visibility was good. Also, there was testimony that the street lighting in the area in question was very good.

Defendant complains that his motions for directed verdict, judgment n.o.v. and new trial were improperly denied. His principal contention, however, is that the trial court committed reversible error by instructing the jury on the doctrine of last clear chance.

In his brief defendant argues that the evidence fails to show that he was negligent and that in any event plaintiff cannot recover because she was contributorially negligent as a matter of law. The principles governing the consideration of motions for directed verdict and judgments n.o.v. are well settled in this circuit. The evidence must be viewed in the light most favorable to plaintiff, giving him the benefit of every favorable inference that may be fairly drawn. If fair minded men may draw different inferences and reasonably disagree as to what the verdict should be, the matter is for the jury. M. C. Carlisle & Co. v. Cross, 386 F.2d 672, 674-75 (1st Cir. 1967); Hobart v. O'Brien, 243 F.2d 735 (1st Cir.), cert. denied, 355 U.S. 830, 78 S.Ct. 42, 2 L. Ed.2d 42 (1957). It is apparent that the evidence here would fairly support different conclusions. The jury could have found that defendant was negligent in exceeding the speed limit and that this was the proximate cause of the accident. On the issue of contributory negligence, the jury would have been justified in concluding that plaintiff, a stranger in the area, could not be expected to see Boyd Road, which according to the testimony of a local police officer, was obscured by the Howard Johnson Motel; that a "DO NOT ENTER" sign which should have been at the entrance to the left fork...