George v. Guerette

• Decision Date: 18 June 1973
• Citation: 306 A.2d 138
• Parties: Ann T. GEORGE and Thomas J. George v. Robert GUERETTE, Jr., et al.
• Court: Maine Supreme Court

Page 138

306 A.2d 138

Ann T. GEORGE and Thomas J. George v. Robert GUERETTE, Jr., et al.

Supreme Judicial Court of Maine.

June 18, 1973.

Skelton, Taintor & Abbott by Frederick G. Taintor, Charles H. Abbott, Lewiston, for plaintiffs.

Linnell, Choate & Webber by John R. Linnell, Curtis Webber, Auburn, Mahoney, Robinson, Mahoney & Norman by Lawrence P. Mahoney, Robert F. Hanson, Portland, Platz & Day by Thomas E. Day, Jr., Thomas F. Kinnelly, III, Lewiston, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

While she was driving in a blizzard from Massachusetts to her home in Auburn on February 25, 1966, Mrs. George's automobile was struck, on separate occasions, by three other vehicles. In separate counts in this action she sought to recover for damages and injuries from the drivers of each of these three vehicles. Her husband sought consequential damages from each Defendant. The case was tried before a jury which returned interrogatories in which no negligence was found on the part of any one of the three Defendant drivers ¹ or on the part of the Plaintiff.

After judgments were entered for the Defendants, Plaintiffs moved for judgments n. o. v. and, alternatively, for a new trial. These motions were denied and the Plaintiffs are here on appeal from the denials.

FIRST COLLISION

On the afternoon of February 25, 1966 in the vicinity of Mile 33 of the Maine Turnpike a heavy snowstorm was in progness creating poor visibility and a slippery, snow-covered northbound lane. Mrs. George, accompanied by a passenger, upon reaching this point on her journey from Brockton, Massachusetts to Auburn, sensed that her Chrysler automobile was going into a skid and pulled over to the extreme right hand side of the road, running into the snowbank and stopping parallel to and partially in the snowbank. ² She turned her key off, unfastened her seat belt and made ready to open her car door to ask for help when she was struck in the rear by a Chevrolet Supersport operated by Defendant Guerette.

Defendant Guerette had approached the vicinity of Mile 33 on his way from Beverly, Massachusetts to Bowdoin College at about 35 miles per hour following closely enough behind another vehicle to see and follow its tail lights. This lead vehicle began to fishtail and swerve, and Defendant Guerette, after analyzing his situation, rejected the possible alternatives of attempting to stop straight in line or turning left into the median, and chose instead to pull to the right of the road into the snowbank. In the process of approaching this snowbank his car slid sideways in such a manner that he struck the rear of Mrs. George's parked Chrysler with the left middle side of his

Chevrolet before coming to rest perpendicular to the roadway, his front end in the snowback. Defendant Guerette never saw Mrs. George's all-white Chrysler until just prior to hitting it and only after he was entirely out of conrol.

SECOND COLLISION

Late that same afternoon, shortly before 5:25 P.M., Mrs. George and her passenger were travelling in the northbound travel lane in the vicinity of Mile 52 of the Maine Turnpike. The weather and road conditions were the same as had been found earlier in the vicinity of Mile 33 albeit perhaps worse, and darkness had fallen. Mrs. George was driving slowly-traffic was passing to her left. A horn sounded and a bus passed. Shortly thereafter Mrs. George's Chrysler was struck in the left rear by a Mercury Comet operated by Christopher Bonnet which had overtaken her.

Defendant Bonnet, just prior to approaching the vicinity of Mile 52 on his way to Colby College at Waterville, had been following the lights of a large truck or bus. By this time visibility had been reduced to two car lengths. The large vehicle began to pull away from his Mercury until finally the lights disappeared altogether. A short time later Defendant Bonnet, travelling between 20 and 30 miles per hour, saw Mrs. George's Chrysler about fifteen feet ahead and to the right of his car. Mr. Bonnet said that a plow which had recently preceded him had plowed a single strip in the center of the highway which was more free of snow than the rest of the road and that Mrs. George's car was to the right of and outside of this strip. Bonnet attempted to move toward the left but struck the Chrysler in the left rear with the right front of his Mercury Comet. On March 3, 1966 in the Trial Justice Court in Scarborough, Bonnet pleaded guilty to a charge of following too closely as a result of this collision, but he testified that he entered the plea of guilty only under duress.

THIRD COLLISION

Mrs. George and her passenger arrived in Auburn in the early evening. It was dark, still snowing, and roads were icy and snow-covered. After passing the base of Court Street hill Mrs. George decided not to attempt driving any further up the incline because of apparent snarled traffic above. She stopped and then proceeded to back down a few feet, parking between two parked automobiles on the right hand side of Court just above James Street. ³ Some few minutes elapsed in which Mrs. George and her passenger remained in the car talking over what to do next during which time a few vehicles proceeded down the hill and passed them. Then their attention was drawn to a car about halfway down the hill coming directly toward them. It was a Chevrolet operated by the Defendant Louis Campbell and it struck Mrs. George's Chrysler a glancing blow on the left rear side.

Defendant Campbell's testimony indicates that he proceeded out onto Court Street from Highland Avenue at least 5 miles per hour. ⁴ As he crossed Court to the right hand lane his Chevrolet began to side-slip and he lost control. He further testified that despite attempting corrective measures in a continuous effort to regain control he struck Mrs. George's Chrysler on the left rear with his left front at a speed of about 15 miles per hour. ⁵ Defendant Campbell admitted having had two glasses of beer along with a hamburger an hour or more before the collision. ⁶

During his charge to the jury the Presiding Justice gave the jury explanations of the doctrines of unavoidable accident and sudden emergency.

When the charge to the jury had been completed and before the jury had retired, Plaintiffs' attorney said to the Court:

'For the record, I would just object to the charge on unavoidable accident and on the sudden emergency doctrine.'

M.R.C.P., Rule 51(b) defines the procedure which must be followed before a party may assign as error a portion of a Justice's instruction to the jury.

'. . . No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

Here there was a complete absence of any statement to the Justice of Plaintiffs' grounds for objection which would have given the Justice opportunity to have corrected his error, if he found there had been error. There was no attempt to inform the Justice whether counsel's objection was to the giving of the instructions as to one, two or all of Plaintiffs' claims against the three Defendants or whether he objected only to some particular language used. Therefore, the Plaintiffs have failed to meet a condition precedent to their right to assign complaints concerning the Justice's charge as error on appeal. State v. Collins, Me., 297 A.2d 620 (1972).

Our examination of the record as it relates to these instructions will be confined to a determination of whether the Justice's instructions contained seriously prejudicial errors.

'Unavoidable Accident' Instruction

The giving of the instruction on 'unavoidable accident', viewed in the light of other language of the charge and in the context of the facts of this case, gives us great concern. The Justice said:

'You are instructed that an accident is an incident that could not have been reasonably foreseen, anticipated, prevented or provided against. So that in this case, if you find that it was purely an accident, the defendant is not liable, or either or any of the defendants are not liable. On the other hand, if you find that the injury to the plaintiff could have been reasonably foreseen or anticipated or could have been prevented or provided against, then it is not an accident but is negligence in failing to prevent or provide against the happening of the injury.'

An examination of the many decisions which have discussed the propriety of the use of the 'unavoidable accident' instruction in motor vehicle negligence cases reveals that much conflict exists. See the annotation in 65 A.L.R.2d 20 (1959). Our study of the cases indicates to us that a small majority of the decisions have held that the Defendant is entitled to the instruction if there is evidence from which the jury could conclude that the collision could have happened without negligence on the part of the Defendant (for example, Wichita Transit Co. v. Sanders, 214 S.W.2d 810 (Tex.Civ.App.1948)); that it is not error per se to give it (Guanzon v. Kalamau, 48 Haw. 330, 402 P.2d 289 (1965)); or that it may properly be given if the evidence justifies an inference of the absence of negligence or proximate cause (Woodhouse v. Johnson, 20 Utah 2d 210, 436 P.2d 442 (1968); Cooper v. Pay-N-Serve Drugs, Inc., 59 Wash.2d 829, 371 P.2d 43 (1962); Grubb v. Wolfe, 75 N.M. 601, 408 P.2d 756 (1965); Dietz v. Mead, 52 Del. 481, 160 A.2d 372 (1960)).

A strong minority of courts have recently concluded that as the instruction can add little to a jury's understanding of the principles of negligence and proximate cause and as it has a great potential to mislead and confuse, it should not be given at all in the ordinary negligence action. Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263 (1967); ...