Gregware v. Poliquin

• Decision Date: 18 March 1937
• Citation: 190 A. 811
• Parties: GREGWARE v. POLIQUIN. SCOTT v. SAME. GREGWARE v. SAME.
• Court: Maine Supreme Court

190 A. 811

GREGWARE

v. POLIQUIN.

SCOTT

v. SAME.

GREGWARE

v. SAME.

Supreme Judicial Court of Maine.

March 18, 1937.

On motion from Superior Court, Androscoggin County.

Three actions by Ida M. Gregware, by Margery J. Scott, and by Orra Gregware against Armand Poliquin. There were verdicts for defendant in each case, and plaintiffs severally filed motions for new trials.

Motions sustained, verdicts set aside, and new trials granted.

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

Berman & Berman, of Lewiston, and Edward W. Bridgham, of Bath, for plaintiffs.

Fred H. Lancaster, of Lewiston, for defendant.

STURGIS, Justice.

Just before 12 o'clock noon of Sunday, November 24, 1935, Paul A. Gregware, an osteopathic physician of Bath, Me., drove his Hudson sedan up Canal street in Lewiston on his way to Barre, Vt., and in passing through the intersection formed by Chestnut street, which crosses Canal street at right angles, he collided with a LaSalle automobile owned and driven by Armand Poliquin, the defendant. The cars were badly damaged. Two passengers, Ida M. Gregware and Margery J. Scott, who were riding with Dr. Gregware as his guests, were seriously injured. They here sue only the defendant, Armand Poliquin, and seek a judgment against him for the damages which they suffered. The action of Orra Gregware is for losses and expenses incurred as a result of the injuries received by Ida M. Gregware, who is his wife.

In the trial court, the jury returned a verdict for the defendant in each case and the plaintiffs severally filed motions for new trials. Contributory negligence is not in issue. By failing to deny in his specifications of defense, the defendant admitted the plaintiffs' affirmative allegations of due care. Superior Court Rule IX. On the pleadings, the defendant's negligence was the only issue before the jury.

The collision occurred on a fair day on a hard-surfaced and dry street intersection, clear of other traffic. The record discloses the usual conflict of testimony as to the speed of the cars. The results of the collision and the marks upon the ways indicate, however, that both automobiles were moving rapidly when they came together.

The evidence leaves no doubt that, although Dr. Gregware may have, as he claims, glanced to the left before he reached this intersection, just before and as he entered it he was looking only to the right and did not observe the approach of the Poliquin car until one of his passengers screamed and called his attention to it. It was then too late to avoid an accident. He applied his brakes sharply, burning the surface of the way with his dragging tires, but hit the defendant's car broadside as it came across in front of him. Clearly, this driver failed to exercise due care. No reasonable excuse for his failure to see the defendant's car coming towards him in time to avoid the collision appears in the record of the cases. The negligence of this driver, however, is not imputable to his passengers or the husband of the one who seeks to recover expenses and losses incident to her care and the treatment of her injuries. Barnes v. Bailey, 134 Me. 503, 187 A. 758; Kimball v. Bauckman, 131 Me. 14, 20, 158 A. 694; Mitchell v. Bangor & Aroostook Railroad Company, 123 Me. 176, 122 A. 415; Cobb v. Cumberland County Power & Light Company, 117 Me. 455, 104 A. 844; Denis v. Lewiston, Brunswick & Bath Street Railway Company, 104 Me. 39, 70 A. 1047.

The negligence of Dr. Gregware, however, does not of itself discharge the defendant from liability. It is not necessary to find that the defendant's negligence was the sole cause of this collision. He must be held liable for the damages which accrued to these plaintiffs as a result of it if his negligence was a contributing proximate cause. When two or more participate in the commission of a wrong, the injured party may proceed against them severally as well as jointly and prosecute his action to final judgment, but obtaining complete indemnity, must be content. Cleveland v. Bangor, 87 Me. 259, 32 A. 892, 47 Am.St.Rep. 326; Hutchins v. Emery, 134 Me. 205, 183 A. 754; Barnes v. Bailey, supra.

It is an established rule of the road directly applicable in this case that "all vehicles shall have the right of way over other vehicles approaching at intersecting public ways from the left, and shall give the right of way to those approaching from the right." R.S. chap. 29, § 7. The car in which the plaintiff passengers rode was traveling north on Canal street, while the defendant's automobile came in from the left and the west on Chestnut street. The statute required the defendant to "give the right of way" to the other car which was "approaching from the right." When a motor vehicle approaching on the right will enter the intersection before the driver of a car coming from the left can cross, and a collision may result if the latter does not stop or slow down, the rule applies. If there is doubt that a safe crossing may be made, reasonable care requires the driver coming in from the left to stop. Petersen v. Flaherty, 128 Me. 261, 147 A. 39. Nothing else appearing, a breach of this rule creates a presumption of negligence on the part of the offending driver. Dansky v. Kotimaki, 125 Me. 72, 130 A. 871; Fitts v. Marquis, 127 Me. 75, 76, 140 A. 909.

We are of opinion that the defendant, upon his own testimony and that of his...