Feely v. Morton
| Decision Date | 04 August 1953 |
| Citation | 99 A.2d 285,149 Me. 119 |
| Parties | FEELY v. MORTON. |
| Court | Maine Supreme Court |
John A. Platz, Lewiston, for plaintiff.
Robinson, Richardson & Leddy, Portland, for defendant.
Before MERRILL, C. J., and THAXTER, FELLOWS, MURRAY, WILLIAMSON and TIRRELL, JJ.
On exceptions. This was an action to recover for injuries to the person and property of the plaintiff suffered in a collision of automobiles caused by the alleged negligent operation of his car by the defendant. At the close of the evidence the defendant moved for a directed verdict. This motion was granted. The case is now before this Court upon plaintiff's exceptions to the direction of the verdict by the presiding Justice.
Taking the evidence in its most favorable light for the plaintiff, as we must in cases of this kind, the jury could have found the following facts. The plaintiff and the defendant were each operating their respective automobiles. The collision took place upon a straight stretch of highway on the outskirts but not within the built-up section so-called of the town of Lisbon. The highway was new, smooth, and level with a macadam surface thirteen paces wide, divided in the center by a white line. Signs limiting the speed to thirty-five miles an hour had been erected under the direction of the Highway Commission at points several hundred feet east and west of the point of collision. The plaintiff was driving his automobile from Lewiston toward Lisbon. The defendant was driving his automobile from Lisbon toward Lewiston. At approximately the center of this straight stretch of highway and on the plaintiff's right-hand side thereof was the defendant's home. The defendant was on his way home from work in Lisbon. To drive into his driveway it was necessary for him to turn across the highway from the right-hand lane thereof, in which he was travelling, to his left sade of the highway. To do this it was necessary for him to cross the highway lane used by traffic coming from Lewiston toward Lisbon. Both parties were, until the defendant made his turn across the highway to enter his driveway, travelling in their respective right-hand lanes of the highway. Both parties, so far is highway conditions were concerned on the day of the accident, had a clear view of oncoming traffic for a distance of at least one-quarter of a mile, with the defendant's driveway at approximately the middle thereof. The defendant travelling toward his home from Lisbon, without giving any signal of his intention so to do, turned directly across the highway in front of the oncoming automobile driven by the plaintiff. There is a conflict of testimony between the plaintiff and the defendant as to whether or not at the time the defendant turned across the highway his view of oncoming traffic was obscured by smoke from grass being burned beside the highway. For our purposes, however, we must accept the testimony of the plaintiff that there was no smoke which did or could have obscured the vision of either of the parties. There is also evidence from which the jury could have found that the defendant's attention was diverted by a dog or dogs outside the highway.
The plaintiff testified and we must, for the purposes of this case, accept his testimony as true, that just before he came to the town of Lisbon he saw the defendant's car on his, the defendant's, side of the road coming toward him; that the road was perfectly straight for more than a quarter of a mile; that between the defendant's car and the plaintiff's car there were no crossroads and no intersections whatever; that the plaintiff watched the defendant and concluded and was justified in so doing that the defendant was going to proceed onward by the plaintiff; that as they came closer together the defendant suddenly turned to his left directly in front of the plaintiff, giving no hand signal or warning of any kind. Without estimating the distance between the two cars when the defendant turned, the plaintiff stated that he was very close to him; that he, the plaintiff, had nothing else to do but put on his brakes, which were four-wheel brakes in good working order, and pull his car to the right as far as he could and still stay in the road; this he did; the defendant kept on coming and his car hit the left rear end of the plaintiff's car which almost passed him; the plaintiff's car then went out of control, out of the road and rolled over, coming to a stop forty-six feet from the point of collision. This latter distance is based upon undisputed testimony of a State Police officer who measured the same.
From the point of collision leading back toward Lewiston there were tire burns on the surface of the road extending toward Lewiston a distance of slightly over one hundred feet. Although the plaintiff urges that whether these tire marks were made by his car is a question of fact for the jury, from the testimony in the case the conclusion is inescapable that the tire burns on the road were made by the plaintiff in braking his car prior to the collision. The plaintiff's car must have been at least a little more than one hundred feet distant from the point of collision when he applied his brakes upon seeing the defendant turn across the road.
To maintain his action the plaintiff must establish by a fair preponderance of the evidence that the accident was proximately caused by the negligence of the defendant and that no negligence on his part was to the slightest degree a proximate cause thereof. In other words, the plaintiff must prove the defendant's negligence and his own freedom from contributory negligence.
There was sufficient evidence in the case to make the defendant's negligence an issue of fact for the jury. This alone, however did not require the submission of the case to the jury. Unless there was also sufficient evidence in the case to justify a jury in finding that no negligence on the part of the plaintiff was a proximate cause of the collision it was not error to direct the verdict for the defendant.
The burden of establishing his own freedom from contributory negligence is upon the plaintiff. This burden is an affirmative one. Unless the plaintiff affirmatively shows that his conduct was such that no lack of due care on his part was one of the proximate causes of the collision he cannot recover. Unless there was sufficient evidence in the case to justify the jury in making an affirmative finding that the plaintiff's conduct was free from negligence that contributed as a proximate cause of the collision, the action of the presiding Justice must be sustained and the exceptions overruled.
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