Gravel v. le Blanc

• Decision Date: 26 October 1932
• Parties: GRAVEL v. LE BLANC.
• Court: Maine Supreme Court

162 A. 789

GRAVEL

v. LE BLANC.

Supreme Judicial Court of Maine.

Oct. 26, 1932.

Exceptions from Superior Court, Oxford County.

Action by John Gravel, by his next friend, against Demara Le Blanc. Defendant's motion for a directed verdict was denied, and he brings an exception and moves for a new trial.

Exception and motion overruled.

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

Albert Beliveau, of Rumford, for plaintiff.

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

DUNN, J.

This is an action of tort for personal injuries. At the close of the evidence, defendant's counsel made a motion for a directed verdict, upon the ground that a verdict for the plaintiff would be contrary to the evidence. Jewell v. Gagne, 82 Me. 430, 19 A. 917; Moore v. McKenney, 83 Me. 80, 21 A. 749, 23 Am. St. Rep. 753; Royal v. Bar Harbor, etc., Co., 114 Me. 220, 95 A. 945; Weed v. Clark, 118 Me. 466, 109 A. 8. Upon denial of the motion, exception was taken.

After the jury had reported a verdict for the plaintiff, counsel for defendant filed a general motion for a new trial. As argued, the questions in the case are raised alike upon the exception and the motion. The case will be considered on the bill of exceptions. As decision shall go on that, so will decision go on the motion for a new trial.

On Sunday evening, May 17, 1931 (around 6 o'clock, standard time, and before it was dark), defendant was driving his automobile, a Pontiac of the coach type, upon the main highway in Mexico, Me. This highway is a state road, with a tarred surface twenty feet wide. Its general direction is north and south.

The automobile, running southward, struck and injured the plaintiff, a boy four years old (lacking eight days), who came into the road from the west side. The child sued, through his next friend, to recover the damages to which he claimed to be entitled by reason of the accident. The trial court admitted the mother to prosecute, in substitution for the original prochein ami.

The declaration, as amended, contained two counts charging actionable negligence on the part of the defendant.

The complaint of the first count is that defendant drove his automobile at an excessive and unreasonable rate of speed; of the second, that he operated the machine recklessly and in such a manner as to endanger the person of the plaintiff. The plea was the general issue. Specifications were not required.

Evidence on behalf of the plaintiff was to the effect that defendant admitted, shortly after the accident, that, when he was at a point which measures farther than two hundred feet (straight as indicated on a plan), from the scene of the collision, he saw the plaintiff, whom he identified as a child, standing on the street side running board of a parked Ford car. How the boy was facing is not in evidence. Apparently no person was in the car.

The person who had parked the Ford testified to having left it on the right-hand side of the road, parallel there to, two feet off the black portion, and headed toward Dixfield. Defendant was proceeding in the direction of that town.

The child (to recur to the evidence of the attributed admission) remained on the running board until he unexpectedly appeared in the road, in front of defendant's car.

Further tendency of plaintiff's evidence was that defendant said an automobile approaching on his left precluded turning his machine to that side of the road, and that he could not stop "because he was going too fast."

There was evidence that, after knocking plaintiff down, defendant's automobile dragged the child one hundred and thirty feet, and that, upon his becoming disentangled and left in a heap in the road, it ran one hundred and seventeen feet farther before being brought to a stop. One of the witnesses testified to measuring from a point opposite the parked Ford, to where he saw the child's mother pick him up, and thence to where defendant's car was stopped.

Defendant, testifying in his own behalf, denied making any admission. He witnessed that he was not driving faster than thirty-five miles an hour, on an open country road (a rate of speed at which the statutes do not presume negligence); that noticing the Ford, parked, partly in the highway, he blew his horn—as was his custom on nearing a parked car—the horn being sounded, in this instance, some fifteen feet away; that plaintiff darted in front of defendant's automobile, two feet ahead, so suddenly that it was impossible to avoid hitting him. Defendant stated that immediately upon impact he applied his foot brake, and stopped his car within thirty feet. His father-in-law, who had been riding in the seat beside him, said while on the witness stand that he had paced the distance, thinking it might be useful, and that it was ten paces. Both attested that the plaintiff was struck and knocked down, but not dragged, or carried beyond two or three feet.

Further testimony for the defense is that, after stopping his car, defendant went back and picked up plaintiff; that he was joined at the car by the boy's mother, who got into it, defendant thereupon driving to where plaintiff's witnesses place his car, for the purpose of turning, to go to the hospital.

The defense insists that plaintiff did not make out a case. Counsel argue that the tendency of the evidence does not show that defendant fell short of the exercise of the care and prudence that the law required, or that was demanded for the safety of the public.

Negligence has been defined to be the want of ordinary care, that is the want of such care as a reasonably prudent and careful man, mindful of his own conduct and the rights and safety of others, would exercise in a similar situation, or under like circumstances. The terms "ordinary care" and "reasonable prudence," as applied to the actions and affairs of men, have only a relative significance, depending upon the incidents and surroundings of the particular case. They defy arbitrary definition. What might be reasonable care under one condition of things might be negligence under another. In other words, the care which ordinarily prudent and careful persons take is commensurate with the necessity for care and the dangers of the situation.

In the instant case, there was conflict in the testimony; yet there was evidence, direct and indirect, sufficient to create, in the estimation of the jury, reasonable probabilities favorable to the plaintiff. Where the evidence admits of only one logical inference, the question is one of law; where reasonable men might differ as to the inferences that could be drawn, the question is one 6f fact. Young v. Chandler, 102 Me. 251. 66 A. 539; Hartford Fire Insurance Co. v. Stevens, 123 Me. 368, 123 A. 38; Savage v. North Anson, etc., Co., 124 Me. 1, 124 A. 721; Collins v. Wellman, 129 Me. 263, 151 A. 422.

The jury could have found from the evidence (some introduced by plaintiff and some by defendant) that defendant saw the plaintiff on the running board of the Ford, two hundred feet away, and recognized him to be a child; that the near wheels of the Ford were at the edge of the road; and that, when within fifteen feet of the parked automobile, defendant sounded his horn. Sounding a warning signal—where there is no apparent necessity for such warning, and the obligation to give such signal is not imposed by statute —does not constitute negligence. This, however, might present a jury question, in view of the claimed admission by defendant, of knowledge of the presence of the plaintiff on the running board. Defendant, it was in evidence, after "tooting his horn," continued at unslackened speed, in the center, or to the right of the center, of the highway. Defendant's express statement, on the stand, was that plaintiff suddenly and unexpectedly appeared in the road, two feet in front of defendant's right mudguard, by jumping from the running board of the stationary vehicle, or passing in front of it; that no other car than defendant's was occupying the road; that defendant did not, when plaintiff was first seen, nor afterward to the time of the accident, change the course of his car.

The jury could validly deduce from the evidence that, though plaintiff, when defendant first saw him, was in the road, and though defendan...