Fernald v. French

• Decision Date: 05 December 1921
• Citation: 115 A. 420
• Parties: FERNALD v. FRENCH.
• Court: Maine Supreme Court

115 A. 420

FERNALD

v. FRENCH.

Supreme Judicial Court of Maine.

Dec. 5, 1921.

On Motion from Superior Court, Cumberland County, at Law.

Action by Anthony O. Fernald against Edward N. French. Verdict for plaintiff, and defendant moves for a now trial. Motion sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ.

Bradley, Linnell & Jones, of Portland, for plaintiff.

Frank A. Morey, of Lewiston, for defendant.

SPEAR, J. This case involves an automobile accident. The plaintiff recovered a verdict, and the case comes up on the usual motion.

The plaintiff was a passenger in the car driven by James Wright, his son-in-law.

The negligence of the driver cannot be imputed to the plaintiff, and the question of his contributory negligence is therefore eliminated.

The vital question to be considered is the alleged negligence of the defendant.

The accident took place in plain daylight and in a perfectly open street. It occurred at or near the junction of the Eastern Promenade and Washington street in the city of Portland. At this place Washington street is 44 feet wide, with two car tracks running through the center, occupying a width of 14 feet, thereby leaving 15 feet in the clear for travel on each side. The Promenade opens into Washington street upon the easterly side, and has a width on the line of the street of about 75 feet.

Washington street is paved, and the Promenade is macadam to the line of Washington. Washington street runs southerly towards Congress street and northerly toward Falmouth. The Promenade does not cross Washington street but leads out of it toward the east.

For convenience the car in which the plaintiff was riding will be spoken of as the plaintiff car. The plaintiff car was going southerly toward Congress Street and the defendant car in the opposite direction. The plaintiff ear was occupying its right-hand side of the road until it arrived at a point nearly opposite the middle of the mouth of the Promenade. It was the particular duty of the defendant to watch for a car that might be coming from the Promenade into Washington street. As was said in Bragdon v. Kellogg, 118 Me. 42, 105 Atl. 433, 6 A. L. R. 669:

"A somewhat different situation than would arise if they [the streets] crossed each other, forming four corners, in this, that a car on Main street [Washington street] approaching North street [the Promenade] is charged with knowledge that a car coming from North street [the Promenade] must necessarily turn to the right or the left into Main [Washington] street."

The defendant kept the right-hand side of the road all the time, until he turned still further to the right to avoid collision.

The defendant had the right of way in passing the mouth of the Promenade. He was, moreover, charged with the knowledge and expectation that a car might cross his path coming from the Promenade, but not with either knowledge or expectation that a car would cross his path, by turning into the Promenade, from the other side of the street, without reasonable warning. There is no proof that the defendant was violating the law of speed. The evidence of the plaintiff shows that he was in all respects a lawful traveler on this road up to the moment of the accident.

In describing the accident we refer only to the plaintiff's evidence, as the jury had a right to base their conclusions on the plaintiff's version of how it occurred. But in coming to a reasonable conclusion, not only the testimony, but circumstances and conditions, must be considered. There is an axiom of law expressed by the phrase "res ipsa loquitur," the thing itself speaks. So in this case the manner of the accident furnishes inherent evidence of what took place, when construed in the light of the law applicable to this class of cases.

The plaintiff's version of the accident was that the plaintiff car was moving along on its own side of the street, with the intention of turning to the left across the street, into the Eastern Promenade; that it slowed down and turned to the right of the railroad track for a car to pass; that after the car had passed and it was about opposite the center of the Promenade, the driver threw out his hand before he had crossed the railroad track or made his turn, as testified by Mrs. Wright; that Wright dropped his hand before he saw French coming 100 feet away; that he did not blow his horn; that, as his forward wheels had just passed the car tracks, he saw the defendant, on his own side of the road, about 100 feet away; that he then kept right on going; that after he thus saw the defendant he did not look for him again until he (Wright) was within the entrance of the Promenade, and then only when the plaintiff exclaimed with reference to the proximity of a collision.

The following questions and answers tell the whole story of Wright's negligence and disregard of law:

"Q. You didn't see Mr. French at all, did you, except for the distance when he was back here 100 feet?"

"A. When I started to cross the road there, I looked and I saw him.

"Q. After that you didn't look, did you, until Mr. Fernald called you?

"A. No, sir.

"Q. So that you approached this only place of actually getting across that street from the car track without turning your eyes in the direction of where Mr. French was?

"A. Yes, sir. I was watching the car. I was looking upon the Promenade. I thought Mr. French could see, or whoever it was.

"Q. Or whoever it was?

"A. Yes, sir. He can't run around blind any more than I could.

"Q. I would suppose, if you were crossing the iron and French was coming, you could see him?

"A. I thought at the time some one was driving the machine."

These questions and answers prove, not only an utter disregard of legal duty, but a supercilious indifference to the rights of other vehicles upon the road. And the reason he gives for not observing the movement of the French car only adds to the reckless nature of his act:

"Q. French was right in front of you, all in your sight, from the time you started to cross the track?

"A. I didn't have time to watch Mr. French; there were too many other machines out that day."

The reason he gives for not watching French is the reason that underlies four-fifths at least of all the automobile accidents that occur, namely, he didn't have time, when the casting of an eye would undoubtedly have saved the collision.

If we now note the measurements it will be seen from the evidence of the plaintiff's engineer that the distance from the car track nearest the opening of the Promenade on the line of Washington street was only 15 feet, not more than twice the length of the Ford car in which the plaintiff was riding. Wright testifies that his front wheels were on that track, when he then first saw French. He had an unobstructed view of him all the time. There were "many machines," and yet, according to his own testimony, Wright turned directly in the path of the defendant ear, when he knew it was coming directly along the right-hand side of the street, without ever once looking up to see whether he could safely pass in front of that car or not.

Time and distance are deceptive and illusive under such circumstances. The whole occurence from the time the plaintiff car saw French until the imminence of collision was the...