Irish v. Clark

• Decision Date: 22 August 1953
• Parties: IRISH v. CLARK et al. DUNN v. CLARK et al.
• Court: Maine Supreme Court

Page 290

99 A.2d 290

149 Me. 152

IRISH v. CLARK et al.

DUNN v. CLARK et al.

Supreme Judicial Court of Maine.

Aug. 22, 1953.

John G. Marshall, Auburn, for plaintiff.

Locke, Campbell, Reid & Herbert, Augusta, William B. Mahoney, Saul H. Sheriff, Portland, for defendant.

Before MERRILL, C. J., and THAXTER, FELLOWS, MURRAY, WILLIAMSON and TIRRELL, JJ.

WILLIAMSON, Justice.

These two actions, before us on exceptions to the direction of verdicts for both defendants, arise from a collision between an automobile driven by the defendant Clark in which the plaintiff Nancy Irish was a passenger and an automobile driven by the defendant Milton. The defendants are charged with liability as 'joint tort feasors', within the common use of the term, for concurring acts of negligence. Nancy Irish, a minor, seeks to recover damages for personal injuries, and Marion P. Dunn, who has custody of Nancy, for medical and other expenses not included in the latter's suit.

The sole issue--identical in both cases--is whether there was evidence of due care on the part of Nancy Irish which would warrant submitting the cases to the jury. The evidence was clearly sufficient to go to the jury on the other issues; namely, negligence of both defendants, damages, and due care of plaintiff Marion P. Dunn. Indeed there is no dispute on this score, except with reference to defendant Milton's negligence. For convenience we will discuss only the case in which Nancy Irish is the plaintiff.

The facts which a jury could reasonably find may be briefly summarized. The cars collided at the intersection of the Blue Road, or Curtis Corner Road, so-called, and Route No. 202, the main or through highway from Winthrop to Lewiston, about 10:15 o'clock on the evening of March 16, 1952. The Milton car was proceeding westerly on the main highway at a speed of forty-five miles per hour and the Clark car was travelling southerly on the Blue Road, on which there was a 'stop sign'. Neither driver saw the other until it was too late to avoid the collision. To use the words of defendant Milton: 'As I approached this intersection a car (the Clark car) shot out from behind the snow bank, and there was not time to do anything. It was about a car or two cars length in front of me, and I just hit it.'

There were four young people in the Clark car. In the front seat were defendant Clark and Carol Barber, and in the rear seat the plaintiff Nancy Irish, aged 16, and Lawrence Lord. Carol testified that at some point on the way home from Lewiston to North Monmouth Nancy and Lawrence changed from the front to the rear seat. She remembered nothing of the details of the accident. Neither Nancy, nor Lawrence Lord, nor the defendant Clark took the stand.

There is no dispute about the controlling legal principles. The plaintiff has the burden of affirmatively proving her due care or freedom from contributory negligence. The issue is to be decided by the jury, if, but only if, the evidence with the inferences reasonably drawn therefrom taken in the light most favorable to the plaintiff warrant such a finding. The jury must base its conclusion upon facts found, not upon guess, conjecture or surmise. Feely v. Morton, 149 Me. 119, 99 A.2d 285; Spang v. Cote, 144 Me. 338, 68 A.2d 823. The argument of the defendants is this: that there is no evidence of what Nancy was doing from the time she sat on the rear seat until the collision; that it would be a guess, and no more, to find either negligence or due care on her part; and that therefore she has not sustained the burden of proving the essential fact, and so the verdicts were properly directed.

Three types of possible negligent conduct on Nancy's part are suggested: (1) failure to warn of impending danger; (2) physical interference with the driver, and (3) directions to the driver as to his speed or course.

The record contains evidence from which a jury could find that no warning by Nancy could have averted the accident. Reasonable persons could conclude under all of the circumstances that there was no lack of due care on Nancy's part in failing to see the Milton car in time to give an effective warning. Nancy was not the driver. It was not her duty as a passenger to undertake the direction of the car. A jury could well find that she failed in no duty to act affirmatively. Nadeau v. Perkins, 135 Me. 215, 193 A. 877; Keller v. Banks, 130 Me. 397, 156 A. 817; Peasley v. White, 129 Me. 450, 152 A. 530, 73 A.L.R. 1017.

We come to the second and third types of suggested negligent conduct. They are, it will be noted, acts from which a passenger or guest must refrain. It was stated in argument that had there been evidence that Nancy was asleep on the back seat, for example, the cases should have gone to the jury. It is the failure to account for Nancy's noninterference which the defendants say is fatal to her case at this stage.

On this point we need consider certain evidence applicable against Clark, but not against Milton. Both Clark and Milton talked with Officer Robinson of the State Police who investigated the accident shortly after it happened. The Officer said:

'A. He (Clark) said he came out onto the road, saw the stop sign and the other car at about the same time, that he increased his speed, trying to clear the other car.

'Q. Do you recall the expression that he made? A. He said he gunned it.'

The statement of Clark, who did not take the stand, is evidence in the case against him. It has no bearing upon the case against Milton. Although Clark and Milton may be called 'joint tort feasors,' this characterization in the situation here existing carries no implication of a joint undertaking. The principles are well set forth by Chief Justice Dunn in Arnst v. Estes and Harper, 136 Me. 272, 8 A.2d 201. The important feature of Clark's statement to the officer is that he does not indicate the slightest interference on the part of Nancy. His statement is valuable evidence no less for what he did not say than for what he did say. A jury could well have considered that a young man giving a...