Humphrey v. Hoppe

• Decision Date: 09 April 1929
• Court: Maine Supreme Court
• Parties: HUMPHREY v. HOPPE.

145 A. 748

HUMPHREY

v. HOPPE.

Supreme Judicial Court of Maine.

April 9, 1929.

Exceptions from Superior Court, Kennebec County, at Law.

Action by Elizabeth A. Humphrey against Henry G. Hoppe. Verdict for plaintiff. On defendant's exceptions, and general motion for a new trial. Exceptions and motion overruled.

Argued before WILSON, C. J., DEASY, STURGIS, BARNES, and BASSETT, JJ., and PHILBROOK, A. R. J.

Ralph W. Farris, of Augusta, for plaintiff.

George W. Heselton, of Gardiner, for defendant.

PHILBROOK, A. R. J. This is an action in tort to recover damages for personal injuries suffered by reason of the alleged negligence of the defendant. The plaintiff recovered a verdict for $2,000. The case comes to the law court on defendant's exceptions and general motion for a new trial.

The parties were joint owners and managers of an enterprise known as "Slumberland," which consisted of wayside lodging camps located on a public road leading from Augusta to Waterville. The road ran in a northerly and southerly course. Their residence, store, and camps stood on the westerly side of the road, and a barn, used as a garage, stood on the easterly side. Along the easterly side of the road runs an electric car track. The distance between the westerly sill of the barn and the easterly iron of the track is about four or five feet. Electric cars, upon regular schedule time, passed the barn hourly, going north about twenty minutes after, and south twenty before the hour. Both parties had lived on the premises about four years, and it would be a reasonable presumption that each had knowledge as to the passing time of the electric cars, although the defendant denied having such knowledge at the time of the accident.

On the afternoon of August 9, 1927, the defendant invited the plaintiff to ride to Augusta with him in his automobile. In accordance with the invitation, the plaintiff crossed the road, entered the barn, and took a seat in the automobile, which was standing with its front end toward the open door. After she had become seated, the defendant closed the car door on the side where the plaintiff was sitting, went to the other side of the car, and, as he says, "looked down and up the street and stepped into the car on my own side of the car," but saw no electric car coming. There is credible testimony in the record tending to show that one standing in front of the barn and looking northerly could plainly see an approaching electric car at a distance of eleven or twelve hundred feet. The plaintiff testified, "I asked him if he looked to see if a car was coming and he said he had." The defendant then drove his automobile out of the barn, on to the electric car track, and collided with a south-bound electric car, which was "very near on time" as testified by the conductor. As a result of this collision, the plaintiff suffered her injuries. No negligence on the part of those operating the electric car is claimed. The negligence herein complained of is the failure of the defendant driver to use that degree of care which he owed to a gratuitous passenger. In addition to the plea of not guilty, the defendant alleged contributory negligence on the part of the plaintiff.

Exceptions.—In the course of the trial, the plaintiff claimed that, on several occasions, after she was able to go about, her right leg gave out and she would fall down. By her counsel she was asked, "Referring to those spells you had in your leg when it let you down, state whether or not on November 30th your leg gave out on you as you despribed it?" This question was objected to by defendant's counsel and after discussion was withdrawn but immediately following that interrogatory, and the discussion of the same, other questions were asked, objected to and admitted, the nature of which may be better understood by calling attention to the fact that...