Illingworth v. Madden

• Decision Date: 21 May 1937
• Citation: 192 A. 273
• Parties: ILLINGWORTH v. MADDEN (two cases).
• Court: Maine Supreme Court

192 A. 273

ILLINGWORTH

v. MADDEN (two cases).

Supreme Judicial Court of Maine.

May 21, 1937.

On motions and exceptions from Superior Court, Kennebec County.

Actions by Thomas Illingworth and by Roy Illingworth, pro ami, against Clarence E. Madden, Jr.On defendant's exceptions and motions for new trials.

Motions and exceptions overruled.

Argued before DUNN, C. J., and STUR-GIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Carl A. Blackington, of Waterville, and Ernest L. Goodspeed, of Gardiner, for plaintiffs.Joly & Marden, of Waterville, for defendant.

STURGIS, Justice.

In these actions of negligence brought by a minor and his father, the plaintiffs have the verdicts.The defendant reserved numerous exceptions to rulings made and instructions given or refused by the trial judge and filed general motions for new trials.

Motions.

There is no serious dispute as to the material facts proven in these cases.The evidence clearly shows that just before (o'clock in the evening of December 28, 1935: Edward F. Savage, eighteen years old and living in Waterville, Me., borrowed his father's automobile and drove over to Boutelle avenue to call on Roy Illingworth, a friend of about the same age.When he arrived there, some one suggested a toboggan party, arrangements were made over the telephone to borrow one from James Illingworth whe lived in another part of the city, and the party, including young Savage and Roy Illingworth, the latter's younger brother and a cousin and his mother, went over to get the toboggan.It was fastened to the right real bumperette of the automobile and Roy Illingworth, although his mother requested him to ride inside the car, sat down on ii holding the rope in his hands.James Illingworth, joining the party, got into the front seat of the car beside Savage whe drove, and they started back through the city dragging the toboggan and its rider behind the automobile.

It had been arranged, it seems, that Mrs. Illingworth should leave the car down town in the shopping district and walk home at her own convenience.Having this in mind but without specific direction from anyone, Savage drove up Elm street on the right-hand side and across the intersection which it made with Temple street and stopped his car near the sidewalk for Mrs. Illingworth to alight.The back of the automobile was then 5 or 6 feet from the corner and the rear end of the toboggan was just clear of the Temple street curb line.

As the automobile and the toboggan behind it came to a stop and the minor, Roy Illingworth, was rising up to his feet, the defendant, Clarence E. Madden, Jr., came up Temple street in his automobile and turning right around the corner of Elm street ran over the toboggan, struck young Illingworth, threw him under the car, and, his coat catching on the front axle, dragged him several hundred feet up Elm street where the boy's coat tore loose, the running gear and rear axle cleared him, and the car went on leaving him behind.The defendant, stopped by some of the occupants of the Savage ear who had followed him up the street, came back and took the boy, who had arisen, to the office of his family physician where examination disclosed that while his clothing was torn and he had received numerous abrasions and cuts upon his face and left lower arm, the boy's left hand only was seriously injured.His left little finger was badly jammed, the ring finger on the same hand was disjointed and crushed, and the middle finger was split its entire length with both sides broken open and the tissues mangled.

While the defendant's negligence is not conceded, it is clearly established by the overwhelming weight of the evidence.Driving a 1931 Dodge coupe, he came up Tempie street, slowed his car down at a stop sign, and with his windshield frosted or misted so that he could only see out through the space cleared by the defroster, started ahead in low gear and drove around the corner and up Elm street without seeing the Savage car or the toboggan until he was stopped and found the boy and his mother standing some little distance behind his car.He admits that he had seen the Savage car cross the intersection ahead of him as he was at or near the stop sign, but states that he did not notice the toboggan dragging behind it.The seat of his automobile was so low, he says, that he could not see anything down on the street level within 50 feet ahead of his car.He testifies that his engine was cold and missing fire so that as he started up at the stop sign he was obliged to continually operate the choke on the dash and continued so to do until he got out on Elm street.His statement is: "I was looking dead ahead and fooling with the choke."Upon this evidence, we are of opinion the jury were fully warranted in finding that the defendant centered his attention upon the operation of his choke and drove around the corner of Elm street without due thought or regard for who or what might be in the street in front of him.This spelled negligence.Hill v. Finnemore, 132 Me. 459, 464, 172 A. 826;Callahan v. Bridges Sons, Inc., 128 Me. 346, 349, 147 A. 423.

In his brief statement of special matters of defense, the defendant set forth numerous grounds upon which he alleged the plaintiffs were guilty of contributory negligence barring their recovery in these actions.On this issue, the jury were allowed to consider only the degree of care exercised by the minor, Roy Illingworth.The trial judge ruled that negligent acts or omissions, if any, of the driver of the car and of the minor's mother were not imputable to either plaintiff.

The verdicts indicate that the jury, under the instructions given them by the court, found that Roy Illingworth was not guilty of contributory negligence.In this, we find no manifest error.It cannot be said as a matter of law that it is negligent to ride upon a toboggan drawr. by an automobile over a public highway.No more controlling is the fact that the toboggan did not carry a light.The evidence shows that the street where the accident occurred was well lighted and the toboggan and its rider were in plain view of the defendant as he turned the corner.No reason appears for assuming that the accident would have been avoided if the toboggan had carried a light.

No claim is made that the damages awarded the plaintiffRoy Illingworth were excessive.He was a freshman in Colby College and an accomplished musician.He also worked part of the time in a textile mill and since the accident that has apparently been his regular employment.There is convincing evidence that the injuries he received in this accident permanently impaired his ability to play either the piano or the clarinet, which were the instruments he was studying, barred his chance of becoming a music teacher, and interfered with his work as a textile operative.

Careful examination of the record fails to disclose that the damages awarded Thomas Illingworth were clearly excessive.His enumeration from memory of the amount of disbursements made and losses suffered as a result of his son's injuries falls just short of the aggregate of the award.Items of loss named but not valued may account for the variance.We find no clear warrant for granting a new trial on this ground.

Exceptions.

Exceptions reserved during the trial to the admission of testimony are not pressed here and need not be considered.Counsel apparently recognize, as the record shows, that the defendant suffered no prejudice from the introduction of this evidence.

In the course of his charge, the trial judge instructed the jury that, "It is not negligence in itself for a person to ride upon a toboggan towed by an automobile."We find no merit in the exception reserved to this instruction.This brief general statement of the law was correct in principle and in nowise misleading.The jury were carefully instructed in direct connection therewith that the minor plaintiff's act in riding the toboggan was to be considered in the light of the circumstances and conditions existing at the time and place of the accident and his due care measured accordingly.The language used was clear, plain, and free from technicalities and from ambiguity.We are confident that no member of the panel was confused by it or misdirected in his deliberations.

The defendant in his specifications of defense pleaded, and on the brief argues, that the minor plaintiff, Roy Illingworth, and Edward F. Savage, who drove the automobile which hauled the toboggan, as all other members of the party were engaged in a joint enterprise, young Savage was negligent both in failing to have the toboggan lighted in accordance with the statute governing the operation of motor vehicles and trailers in stopping it in close proximity to the street intersection in violation of a local city ordinance, and that his negligence is imputed to his companions including the plaintiffs in these actions.The justice presiding refused to give requested instructions submitting this issue to the jury and directed them to exclude it from their considerations.

It is undoubtedly true that each and all of the young people in this party, as they drove over after the toboggan and started back towards the outskirts of the city where they planned to slide, had a common interest in the "object and purposes of the undertaking," but proof that they had equal rights in the control and management of the automobile in which they rode is entirely lacking in the record.Without prearrangement or even knowledge on the part of the others, young Savage borrowed his father's car presumably for his own personal use, and started out merely to make a call.It nowhere appears that he in any way or at any time surrendered his personal control over the automobile to any of his companions, or by evidence of probative value that Roy Illingworth or any of the others interfered with or assumed any responsibility for or control over its operation.The testimony is...