Emery v. Frateschi

• Decision Date: 02 July 1965
• Citation: 161 Me. 281,211 A.2d 578
• Parties: Eva Soule EMERY, Adm'x, Estate of Guy T. Emery, v. Nelmo FRATESCHI, Sr. and Edward A. Frateschi.
• Court: Maine Supreme Court

Page 578

211 A.2d 578

161 Me. 281

Eva Soule EMERY, Adm'x, Estate of Guy T. Emery, v. Nelmo FRATESCHI, Sr. and Edward A. Frateschi.

Supreme Judicial Court of Maine.

July 2, 1965.

Grover G. Alexander, Gray, for plaintiff.

Marshall & Raymond, Lewiston, Linnell, Choate & Webber, by G. Curtis Webber, Auburn, for defendants.

Before WILLIAMSON, C. J., and TAPLEY, SULLIVAN, MARDEN, and RUDMAN, JJ.

SULLIVAN, Justice.

Upon a very dark yet fair summer night on Route 11 between Webb's Mills and Poland in an easterly direction Guy T. Emery the intestate companionless was driving his Plymouth automobile along a curve at the bottom of a grade. Simultaneously the defendant Edward Frateschi a minor aged 15 was operating a Pontiac car the property of his father, defendant Nelmo Frateschi, Sr., in an opposite and westerly course and into the same curve. The two vehicles collided. Emery was killed and death was apparently instantaneous. Edward Frateschi and his three youthful companions were severely injured.

The automobile of Emery left the highway, turned onto its roof and pointed westerly in the direction from which it had come. The Frateschi car swung about upon the highway so as to face the east and came to a halt. Both vehicles had become immeasurably damaged.

Mrs. Emery as administratrix of the estate of her deceased husband instituted her action for the benefit of his children and of herself as his widow to recover pecuniary damages resulting from the death of Mr. Emery and to compensate the estate for funeral expenses. Her complaint alleges that such losses were caused by the negligence of the defendant and oprator Edward Frateschi and that the father Nelmo Frateschi must share with his son a joint liability for having furnished the Pontiac car driven by the son. The parties in this case have stipulated that the father did so furnish the car. R.S.1954, c. 22, § 156.

The defendant Edward Frateschi through his father as next friend has counterclaimed against the Emery Estate for personal injuries caused to Edward by the negligence of the intestate. The defendant Nelmo Frateschi counterclaimed for the negligent destruction of his automobile and for the cost of medical and hospital services provided by the father for his negligently injured son.

A jury trial was held. At the close of all the evidence the plaintiff moved for a directed verdict as to her complaint and as to the counterclaims of the defendants.

Each defendant filed a motion for a directed verdict.

All such motions were denied by the presiding Justice.

The jury disagreed and a mistrial was declared.

All parties filed motions for judgment N. O. V. These motions were also denied by the Justice and all parties have appealed.

During the trial the three passengers who had been riding with Edward Frateschi at the time of the collision and who had sustained grave injuries testified to total oblivion as to the happenings resulting in the accident. Guy Emery was deceased and Edward Frateschi became incompetent to testify when the plaintiff invoked against him the provisions of R.S.1954, c. 113, § 119. (16 M.R.S.A. § 1).

Secondary or circumstantial evidence was the sole medium of proof available to the parties in this case. Mute indicia of physicial actions and reactions.

Route 11 as it affects this controversy traverses a countryside for several miles. At the place of collision the highway as improved and traveled is in width 20 feet, 8 inches or 21 feet, 1 inch according to the recorded testimony and has shoulders approximately 5 feet wide. There was no demarcated center line. The road sharply curves at 7 degrees with a 700 foot radius at the locus of the accident and has a slight bank of 2 feet in 20 feet to accommodate for the curve. To the west there rises a hill at the rate of 5 feet vertically to 100 feet of distance. The crest of the hill is some 480 feet westerly from the place of collision and the bottom of the hill is some 150 feet eastwardly. The road had a hard surface and was posted for a maximum speed of 55 miles per hour.

Just before the mishap the defendant Edward Frateschi was operating the Pontiac car westerly on Route 11. The late Guy Emery was driving his Plymouth car easterly. After the collision each car was severely damaged in front from driver's right to left. The front license plate of the Emery car prior to the accident had been affixed to the middle of the front bumper. Following the collision that plate was found to be embedded between the left front tire and the front bumper of the Frateschi car. The Frateschi vehicle had turned almost 180~ and was headed easterly. The Emery car was off the highway to the south.

There were fluid and debris from the crushed cars upon the road surface on both sides of the medial line and a gouge in the macadam by the left front wheel of the halted Pontiac. On the traveled road there were no tire marks attributable to the Emery car. The road way was dry.

There were visible on the road's surface 2 'layover' or 'scuff' marks, parallel, each of a tire's width and separated from each other by the space obtaining between two opposite automobile wheels. Those tire marks were 29 feet in length and the left mark terminated 8 inches southerly of the center of the highway.

There were two notable gouges. The longer was just to the right of or the north of the left 'layover' mark, approximately in the center of the road. The slighter gouge led from the left 'layover' mark to the Pontiac's left front wheel.

Through the 29 feet of their length the tire marks coursed very gradually to the left to the extent of one foot in the 29 feet. Those tire marks may be attributed to the Pontiac or Frateschi car. From 'the right side of the left front tire (of the Pontiac car) to the outside of the left side of the left fender' was a distance of 'about 8 to 10 inches.'

Each automobile was about 6 feet wide and the traveled road width of 20 feet, 8 inches or 21 feet, 1 inch would have afforded an unobstructed passage abreast for both cars.

For want of autoptic testimony as to the mishap there is an implacable inference for the fact finder that at the crisis of collision the Frateschi car in respect to its left front corner was protruding onto its left or 'wrong' side of the center line of the highway a distance of 8 inches plus the additional inches to be measured from the left side of the left front tire to the outside of the left side of the left fender.

It is equally and insistently inferable that the Emery or Plymouth car was to some extent upon its left or 'wrong' side of the way at the moment of impact. The front Emery license plate was found locked between the left front tire and bumper of the Frateschi car following the disaster. Obviously that number plate became wedged at the instant of contact of the vehicles. We must therefore deduce that the left front of the Frateschi car and the mid front of the Emery car were the initial surfaces of encounter. We are not obliged to assume. There is testimony that the front license plate hanger of the...