Goldstein v. Sklar

• Decision Date: 18 January 1966
• Citation: 216 A.2d 298
• Parties: Edward W. GOLDSTEIN and Grace Goldstein v. Sara L. SKLAR, Ex'x Estate of Ben Sklar.
• Court: Maine Supreme Court

Page 298

216 A.2d 298

Edward W. GOLDSTEIN and Grace Goldstein v. Sara L. SKLAR, Ex'x Estate of Ben Sklar.

Supreme Judicial Court of Maine.

Jan. 18, 1966.

Edward Stern, Everett W. Gray, Arnold L. Veague, Bangor, for plaintiff.

Mitchell & Ballou, by John W. Ballou, Rudman & Rudman, by Paul L. Rudman, Bangor, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, and DUFRESNE, JJ.

DUFRESNE, Justice.

On appeal, in the case of the husband plaintiff, from the denial of defendant's motions for a directed verdict, for judgment n. o. v. and for new trial.

Defendant contends that the jury verdict and judgment thereon should be set aside and judgment entered for the defendant, on the ground that there is not sufficient evidence from which the jury could find that the plaintiff was in the exercise of due care at the time of the automobile accident wherein he sustained his injuries.

Should her request for judgment be denied, defendant further seeks a new trial for the usual reasons that the jury verdict is contrary to the evidence and the weight thereof, contrary to law, and against the law and the evidence, limiting however her attack on liability solely to the issue of plaintiff's contributory negligence.

The evidence sustains the following narration.

On August 25, 1961, at about 9:00 P.M., when dark, the plaintiff doctor and his wife passenger were traveling in a northerly direction on Broadway, in Bangor, Maine, while the defendant's testate, Ben Sklar, operating in a westerly direction on Garland Street, concededly drove his automobile through the stop sign at the intersection of said public ways, and collided with the plaintiff's car.

As against the defendant's contention that there is not a scintilla of evidence to support the finding of plaintiff's due care necessarily included in the jury verdict, the record discloses that the plaintiff's car was damaged on the right front door and to the rear of the right side and the Sklar vehicle on the left front. The speed of both cars prior to the impact was described, without objection, as being normal, not excessive, and about the same. The plaintiff's automobile, so two persons parked some 30 feet away from the intersection stated, was being operated on its own right hand side of Broadway, but was pushed somewhat over the center line thereof by the impact from the Sklar vehicle, which did not stop for the stop sign. The intersection was illuminated by street light; both vehicles had their head lights on and although one could see some 30 to 40 feet into Garland Street when proceeding northerly on Broadway, vision was cut down somewhat by reason of trees and a rise in the terrain.

With the evidence in that position because of the statutory testimonial inhibition of the 'dead man' statute so-called, R.S.1954, c. 113, § 119, now M.R.S.A. T. 16 § 1, (Sklar had deceased on April 2, 1963), was there a failure of proof of plaintiff's due care as a matter of law?

The physical and evidentiary facts tend to indicate that the plaintiff's automobile, of the two vehicles converging upon the intersection, entered it first and thus confirm objectively the plaintiff's right of way in fact as well as in law. There is no evidence of positive acts condemning the plaintiff's operation as negligence as a matter of law.

But should there be positive evidence as to what the plaintiff operator was doing and where he was looking at the time of the accident, failing which this Court should rule as a matter of law that the plaintiff has not carried his burden of proof as to his own due care? We think not.

This case is analogous to Tinker v. Trevett, 155 Me. 426, 156 A.2d 233, except for the fact that in Tinker, the plaintiff did testify that, when about a car length away, she glanced in both directions, observed nothing and continued into the intersection, seeing the defendant for the first time just before the collision, which caused this Court to say that it was plain the defendant was in plaintiff's sight when the plaintiff's sedan was more than a car length north of the intersection and the plaintiff's vision was not obscured to the extent suggested by her.

In this case, we do not have, as in Tinker, any such evidence suggesting that a proper observation by the plaintiff under the circumstances might have brought timely notice to him that the Sklar vehicle would not obey the stop sign law so that the accident could have been avoided. It was nighttime, and visibility into Garland Street from plaintiff's position was no more than 40 feet, with obstructions that could have reduced the extent of such visibility.

As stated by this Court in Crockett v. Staples, 148 Me. 55, at 59, 89 A.2d 737, at 739:

'The plaintiff was not bound to anticipate defendant's negligence. He had a right to consider that the defendant would observe the law as to stopping.' Hutchins v. Mosher, 146 Me. 409, 82 A.2d 411; Davis v. Simpson, 138 Me. 137, at 145, 23 A.2d 320.

The plaintiff's right to assume that Sklar would observe the law and refrain from negligently operating his automobile through the stop sign, would legally persist until the contrary appeared. Davis v. Simpson, supra. See also, Sanborn v. Stone, 149 Me. 429 at 434, 103 A.2d 101.

When should the plaintiff Goldstein as an ordinary reasonable person in the exercise of due care have had knowledge that the Sklar vehicle in all probability would not observe the law, would negligently go through the stop sign without stopping and fail to yield the statutory right of way? From the evidence as it stands in the record, we cannot say as a matter of law that such knowledge should have come to the plaintiff before he was committed to entering the intersection and at a time when it was not too late to avoid the collision.

'It is not necessary to show a positive act of care if it appears that there is absence of fault.' Torrey v. Congress Square Hotel Co., 145 Me. 234, at page 244, 75 A.2d 451, at page 458.

Our Court in Guthrie v. Me. Central R. R. Co., 81 Me. 572, at page 580, 18 A. 295, at page 296, well described the situation that confronts us here:

'The second question raised is whether the plaintiff is shown to have been in the exercise of due care at the time of the accident. The degree of care required is not in dispute, nor is it denied that it is a question for the jury. But it is denied that the plaintiff has affirmatively discharged the burden resting upon him of showing that he was not guilty of negligence which contributed to the accident. This, at best, is a negative kind of proof. It is not necessary, nor is it ordinarily expected, that any positive act of care shall be proved. If there is any fault, that is usually susceptible of proof. But the absence of fault, with evidence of circumstances which naturally exclude it, is sufficient.'

The evidence discloses factual circumstances which naturally tend to exclude negligence on the part of the plaintiff as a proximate contributing cause of the accident; they have some probative force indicating that the plaintiff could not have avoided the collision by the exercise of due care.

This case is not controlled by McLane v. Perkins, 92 Me. 39, 42 A.2d 255, 43 L.R.A. 487 where the cause of death of the plaintiff's intestate was completely left unexplained and conjectural in the evidence.

To carry a case to the jury, the evidence on the part of the plaintiff must be such as, if believed, would authorize them to find that the accident was occasioned solely by the negligence of the defendant. Witherly v. Bangor & Aroostook Ry., 131 Me. 4, at page 7, 158 A. 362; Spang v. Cote et al., 144 Me. 338, at page 343, 68 A.2d 823; Burtchell v. Willey, Sr., 147 Me. 339, at page 344, 87 A.2d 658.

As stated in Torrey, supra,

'there is evidence enough in this record to warrant a finding by the jury as to whether or not the plaintiff exercised legal care.'

The defendant's motion for a directed verdict, for judgment n. o. v. and for new trial based on the insufficiency of the evidence was properly denied by the presiding justice below.

Defendant's motion for new trial is also grounded on the alleged reversible error occurring when the Court below, over objection, permitted plaintiff's medical witness to relate to the jury the history given to him by the plaintiff on original examination for purposes of treatment.

The offending testimony may be divided into 3 parts:

(1) 'he stated to me that as a result of the impact he was thrown to the left, he was in the driver's seat;' this part of the statement, it must be conceded, is a narration of events concerning the occurrence of the accident.

(2) 'that his head snapped at the impact. He noted immediate soreness involving the left side of the neck, the left shoulder, and the left side of the body. He complained further that within 24 hours after this injury, he noted numbness on the outer aspect of the hand and forearm. * * * He also complained of pain in the left shoulder shortly after the injury. He then gave me further history as to what took place from that time until the time I saw him;' this portion of the reference history, as maintained by defendant's counsel, describes the plaintiff's past physical disturbance, pain and suffering.

(3) 'Doctor Goldstein told me that he was receiving diathermy treatment to the neck, traction treatments to the neck, and injections of vitamin B-12;' this last quoted testimonial averment, as defendant's counsel contends, indicated past medical treatment by another physician.

The record shows that defendant was not objecting to any history which the plaintiff might have given to the doctor as to his pain and suffering or subjective complaints at the time of examination, but only to the recital of past events, past complaints, past pain and suffering, past medical treatment.

Let us bear in mind, however, the constrictive deliminations within which this evidence was received as it did not go to the jury...