Jordan v. Portland Coach Co.

• Citation: 150 Me. 149,107 A.2d 416
• Parties: JORDAN v. PORTLAND COACH CO.
• Decision Date: 13 July 1954
• Court: Maine Supreme Court

Page 416

107 A.2d 416

150 Me. 149

JORDAN v. PORTLAND COACH CO.

Supreme Judicial Court of Maine.

July 13, 1954.

Basil Latty, Portland, for plaintiff.

Edward J. Berman, Portland, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU and TAPLEY, JJ.

WEBBER, Justice.

Plaintiff makes claim for personal injuries alleged to have been caused when she was struck by defendant's bus from which she had just alighted as a passenger. At the close of the evidence defendant's motion for a directed verdict was denied and exceptions thereto are before us.

We view the evidence in the light most favorable to the plaintiff to determine whether the matter was properly submitted to the jury to determine controverted facts and to draw any reasonable and legal inferences therefrom. Greene v. Willey, 147 Me. 227, 86 A.2d 82. A verdict is properly directed for a defendant when the evidence tending to support a verdict for the plaintiff is not such as reasonable minds are warranted in believing, as when it is incredible, or unreasonable, or inconsistent with the proved circumstances of the case, or when the evidence contrary to the plaintiff's position is so overweighing and so overwhelming as to make it appear that the jury could not reasonably and rationally find a verdict in favor of the plaintiff. Garmong v. Henderson, 114 Me. 75, 95 A. 409. In such cases prevention by direction of the verdict is better than the cure. Sylvia v. Etscovitz, 135 Me. 80, 189 A. 419; Weed v. Clark, 118 Me. 466, 109 A. 8.

In order to justify submission to a jury, plaintiff's right to recovery must be supported by more than a mere scintilla of evidence. 'That a scintilla of evidence will not support a verdict was long since declared in this Court, in decisions still of authoritative force.' Bernstein v. Carmichael, 146 Me. 446, at page 450, 82 A.2d 786, at page 788. "It is not enough to say there was some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the Judge in leaving the case to the jury. There must be evidence on which the jury might reasonably and properly conclude that there was negligence." Beaulieu v. Portland Co., 48 Me. 291, at page 296. Mere surmise or conjecture will not warrant submission of a plaintiff's claim to a jury. When it is sought to establish a case upon inferences drawn from facts, it must be from facts proven. A jury is entitled to draw all inferences that are reasonable and proper from such evidence. That they are limited to such inferences is undoubted. Inferences based on mere conjecture or probabilities will not support a verdict. Bernstein v. Carmichael, supra.

The mere fact that a plaintiff may have offered some testimony in support of his claim will not in every case warrant submission of the cause to a jury. The language used at page 90 of 114 Me., at page 415 of 95 A. of Garmong v. Henderson, supra, only slightly paraphrased, has application here. 'We have examined the record from the viewpoint of the plaintiff's testimony, to see if it is sufficiently credible to sustain the verdict, when weighed in connection with the circumstances of the case, which we think should be regarded as proved. We do not say that there is no evidence to sustain [a verdict for the plaintiff], for the plaintiff has testified. But we do say that upon the whole record, giving to the plaintiff such degree of credibility as her own statements entitle her to, her practically unsupported testimony is so overborne by proved circumstances, * * * by the testimony, contradictory to hers, of witnesses apparently reputable, disinterested, and credible, and by the probabilities of the case inconsistent with her claim, as to induce the belief [that a verdict for plaintiff could not be supported].' In Raymond v. Eldred, 127 Me. 11, at page 13, 140 A. 608, at page 609, our Court said: 'The testimony of interested parties, contrary to facts otherwise conclusively established, and contrary to all reasonable inferences to be deduced from the situation disclosed by the evidence, does not raise a conflict even requiring a finding by the jury.' And in Moulton v. Sanford & Cape Porpoise Railway Co., 99 Me. 508, at page 509, 59 A. 1023, we said: 'But a conflict of testimony cannot be said to arise simply because one witness testifies contrary to another. If it was so held, hardly a verdict could ever be set aside. It would be difficult to imagine a case that had been dignified with the verdict of a jury that would not present some conflict of testimony. Besides, if such were the rule, it would only be necessary to secure the evidence of a witness, however false, to hold a verdict once obtained. The rule cannot be so construed. It means that there must be substantial evidence in support of the verdict--evidence that is reasonable and coherent, and so consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against the opposing evidence. When it is overwhelmed by the opposing evidence, a verdict cannot stand.'

As to the circumstances of this accident, the plaintiff is the only witness in her own behalf. Arrayed against her are the driver of the bus whose interest in the case is recognized, and three passengers who, as far as the record shows, are completely disinterested witnesses. Plaintiff boarded defendant's bus on a midwinter evening and rode for some distance along city streets as a passenger. By her own admission she had spent the previous two hours in cocktail lounges drinking with her father. She acknowledges having had three cocktails during that period. Her condition as to sobriety and her unsteadiness on her feet were obvious to the driver and to the passenger witnesses both when she boarded the bus and when she alighted. She pulled the cord to stop the bus when she was still approximately two miles from her destination in the mistaken belief that she had arrived at her destination. The driver drew over somewhat nearer to the right hand side of the street and brought the bus to a stop in such a position that the exit door, located on the right side of the bus at the front, was at or near the location of the regular bus stop. The plaintiff walked to the front of the bus, paid her fare and alighted. She walked directly away from the door of the bus toward the sidewalk and then turned and stood, as she testified, waiting for the bus to move past her and intending to go behind it and cross the street after it had moved on. The driver obviously had a duty not to start the bus until his passenger had safely alighted and had moved far enough away from the bus toward a position of safety so that he could safely proceed past her, and he had a further duty not to steer the bus so sharply to its right that it would move toward the position taken up by the plaintiff and strike her. He had a further duty not to apply the power carelessly and improperly to the rear wheels in such a manner as negligently to induce a skid of the bus to its right and toward the position taken up by the passenger. The driver, however, in the exercise of ordinary care, having observed the plaintiff move away from his bus toward the sidewalk to a place of apparent safety, had a right to anticipate that the plaintiff would not thereafter, while the bus was in the act of passing her, abandon her safe position for one perilously close to the moving bus. He had a right to assume that the plaintiff, who had just left his bus and was well aware of its immediate proximity, would exercise ordinary and reasonable care for her own safety while the bus was being started and moved ahead.

On the other hand, the plaintiff, having alighted and become a pedestrian in the street, owed a duty of care for her own protection. Knowing that the bus might be expected to start and move past her, she owed a duty after alighting to move away from the bus and its course of travel and to leave a sufficiently safe distance between herself and the bus to permit the bus to start and pass her without danger to herself. The record is devoid of any evidence that at the outset either the plaintiff or the defendant's driver failed in any of these duties. The plaintiff moved toward the sidewalk from the bus door to what she obviously considered was a safe distance, and there is no suggestion that the bus was started until she had taken up a position several feet from the door. The plaintiff herself did not attempt to estimate this distance, but the shortest distance estimated by any witness who observed her was three feet, which obviously would provide an adequate margin of clearance. The driver then closed the doors and started the bus ahead slowly. There is no...