Haines v. Cumberland County Power & Light Co.

• Decision Date: 15 September 1938
• Citation: 1 A.2d 353
• Parties: HAINES v. CUMBERLAND COUNTY POWER & LIGHT CO. (two cases).
• Court: Maine Supreme Court

1 A.2d 353

HAINES

v. CUMBERLAND COUNTY POWER & LIGHT CO. (two cases).

Supreme Judicial Court of Maine.

Sept. 15, 1938.

On Motion from Superior Court, Cumberland County.

Two separate actions by Kermit S. Haines and wife against the Cumberland County Power & Light Company to recover for injuries sustained by the wife when she slipped while alighting from defendant's electric car, and for reimbursement of financial loss to the husband. Verdict for the husband for. $1,000 and for the wife for $2,500. On motion.

Verdicts set aside and new trials granted.

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

Frank P. Preti, of Portland, for plaintiffs.

Verrill, Hale, Dana & Walker, of Portland, for defendant.

BARNES, Justice.

Two eases were tried together, and so argued on appeal. Plaintiffs were husband and wife.

The suits were brought to recover damages for alleged injuries to the wife, and for reimbursement of financial loss to the husband.

The operator of defendant's electric car brought it to a stop at Woodfords Corner, and stood in the vestibule, observing an elderly lady, Mrs. MacPheters, Mrs. Haines, her daughter, then about four years old, and Miss Haines coming forward in that order to alight.

He testified that he remarked about the slippery condition of the road, and took hold of Mrs. MacPheters' arm as she took the single step before reaching the roadway; that Mrs. Haines stepped down next and as she turned partially around, reaching for her child, her feet went out from under her and she fell on the roadway, striking Mrs. MacPheters and bringing her down also.

In her declaration, Mrs. Haines alleges that "as she stepped down from the platform of the electric car to a step attached to it in order to reach the ground, her foot which came in contact with the step, suddenly slid out from underneath her, causing her to fall with great force and violence on her back, in the street, at the same time striking the upper part of her back against the car step, causing her severe physical injuries"; with usual allegations of negligence on the part of defendant, and due care on her part.

The time of the stop at the corner was shortly after four P. M. on February eleven, 1935.

The day was clear, the streets covered with ice; no snow had fallen for two days.

The temperature had ranged from +36 degrees at 1 P. M. to +26 degrees at 4 o'clock.

The surface of the ice on roadways is described as "slushy" at the time of plaintiff's fall, and the road ice, smoothed by automobile wheels, extended to and under the running board of the electric car.

The car was manned by but one operator, with entrance and exit at the front, the step, about ten inches wide, turning to horizontal position automatically as the door was opened, and returned to vertical position, upper surface parallel with the side of the car, as the door was shut.

From all the testimony, negligence of defendant, which must be proved, can only be found, if the upper surface of the step as the passenger alighted, was dangerously icy, as the result of the exercise of less than due care on the part of defendant's agent, the operator of the car.

Mrs. MacPheters testified that she didn't see any ice on the car step, Mrs. Haines that she did not look at the step; while the operator of the car testified that he observed the condition of the step as he assisted Mrs. MacPheters to alight, "that it was in perfect condition. There was no accumulation of any kind on it," and Miss Haines testified that the step "was kind of a slushy ice. Looked as if it was freezing."

The sole issue in the case (for the jury must have decided that plaintiff slipped and fell before she had stepped on the icy roadway) was whether the defendant, by its employee, the operator of its car, negligently "allowed and permitted the said car step to become icy and slippery, so as to be dangerous and unsafe" for use of passengers.

It was perhaps impossible for the jury to reconcile the testimony so as to bring to agreement the statements on their face at variance.

The operator testified that he looked at the step while helping Mrs. MacPheters down, and that it was not slippery.

Miss Bruce, a disinterested witness who...