Esponette v. Wiseman

• Decision Date: 26 June 1931
• Citation: 155 A. 650
• Parties: ESPONETTE v. WISEMAN.
• Court: Maine Supreme Court

155 A. 650

ESPONETTE

v. WISEMAN.

Supreme Judicial Court of Maine.

June 26, 1931.

On Motion from Superior Court, Kennebec County.

Action by G. Kenneth Esponette against George A. Wiseman. Verdict for plaintiff. On motion.

Motion sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

George W. Heselton, of Gardiner, for plaintiff.

Locke, Perkins & Williamson, of Augusta, for defendant.

PATTANGALL, C. J.

On motion. Action to recover damages for injuries resulting from a collision between a motorcycle operated by plaintiff and a small Ford truck driven by an agent of defendant, admittedly engaged in defendant's business at the time. Verdict for plaintiff. Damages assessed at $7,267.50. No complaint is made as to the amount of the verdict. The sole issue before us is whether or not there is evidence in the case upon which a jury was authorized to predicate liability.

The collision took place on a state highway, the hard-surfaced portion of which was twenty-one feet in width. It occurred in the early afternoon of an August day at a point where, ordinarily, there is very considerable traffic. The highway was straight and practically level for a distance of at least four hundred' feet south of the point of collision and seventeen hundred feet north thereof. At various points it was crossed by intersecting roads, and there was a filling station and wayside store on its eastern side,' in front of which the grounds had been graded to the street level and a gravel driveway built connecting the premises with the highway. It was at the junction of the main road and this driveway that the trouble occurred.

Plaintiff was proceeding northerly toward his home. Defendant's car was proceeding southerly, its destination being the filling station and store above mentioned. Both drivers were familiar with the locus and each was driving on his extreme right until defendant's car came to a point opposite the Ailing station, when the driver turned to the left and started to cross the highway nearly at a right angle and in the path of the oncoming motorcycle. His car had entered the driveway and proceeded to a point where its rear wheels projected three or four feet beyond the eastern side line of the hard-surface portion of the highway when the motorcycle crashed into it with sufficient force to push its rear end northerly a distance of three feet and to severely damage it. The blow was glancing and the speed of the motorcycle such that it proceeded twenty feet beyond the point of contact, where plaintiff was thrown off and fell in the highway twenty feet still farther on. He sustained so severe an injury to his right leg that amputation was later found necessary.

The only eyewitnesses to the collision were plaintiff and defendant's agent. Their testimony is sharply conflicting.

Plaintiff testified that he was riding at a reasonable rate of speed, not exceeding thirty miles an hour, on the right-hand side of a level road with nothing to obstruct his view for more than a third of a mile; that, looking ahead, he saw approaching him, on the opposite side of the way, an automobile and following it, not very closely, the small truck with which he later collided; that the automobile passed him, but, when he was approximately sixty feet from the truck, it turned sharply to its left and crossed the road directly in front of him, proceeding at an ordinary rate of speed; that, fearing a collision, he immediately applied his brakes, locking his rear wheel; and that, although he did all that could be done to stop the progress of his machine, his efforts in that respect were ineffectual and the collision followed.

The driver of the truck gave a different version. He said that, proceeding along the highway on his right as he approached the filling station, he came to a stop to permit one car going south and another going north to pass him; that the road was then clear excepting that he could see the motorcycle approaching some four hundred feet away; that lie then proceeded to cross the highway at a rate of speed which he estimated at three or four miles an hour and did not observe the motorcycle again until its noise attracted him, after he had entered the driveway and when it was too late to avoid contact with it.

Two witnesses observed plaintiff riding by them a few seconds before the collision. One testified that the motorcycle did not appear to be moving unusually fast; the other estimated its speed at thirty-five miles per hour. Whether this was before or after the application of the brakes is not entirely clear, and we do not regard this evidence as especially important.

The remainder of the oral testimony, in so far as it bears on the question of liability, relates to certain matters apparently not finally in dispute and to expert evidence concerning the operation of motorcycles.

The jury saw and heard the witnesses and were the judges of their credibility. They had a right to accept plaintiff's story of the event as correct in so far as it was not modified or contradicted by admitted facts. To that extent we are bound by its findings, but only to that extent. It therefore becomes of vital importance to analyze the undisputed evidence.

It is agreed that marks on the highway plainly show that, at a point sixty-one or two feet distant from the point of contact between the two machines, plaintiff applied the rear brake of the motorcycle, and that for at least fifty feet of that distance the wheel was locked, so that it is not disputed that for that distance plaintiff used his utmost endeavor to stop the machine in so far as it was possible to do so by braking it.

One important fact in issue is the distance between the vehicles when defendant's car started to cross the road. If it was four hundred feet, as the driver of the truck testified, he had nothing to fear. Doubtless the jury regarded this distance as grossly, even though unintentionally, exaggerated. The roadway was but twenty-one feet in width. If the rear of defendant's car was within two feet of the edge of the highway when it started to cross, and if it had arrived within four feet of the opposite side line when it was struck, it traversed so short a distance that, even if it was moving as slowly as the driver...