Kimball v. Bauckman

• Decision Date: 26 January 1932
• Citation: 158 A. 694
• Parties: KIMBALL v. BAUCKMAN (three cases).
• Court: Maine Supreme Court

158 A. 694

KIMBALL

v. BAUCKMAN (three cases).

Supreme Judicial Court of Maine.

Jan. 26, 1932.

Exceptions and Motion from Superior Court, Cumberland County.

Two actions by Walter S. A. Kimball against Harry W. Bauckman, and action by Geneva W. Kimball against Harry W. Bauckman. Verdicts for plaintiff in each case. On general motions and exceptions.

Exception sustained, motion granted, and new trial ordered in the first action by Walter S. A. Kimball against Harry W. Bauckman, and motion granted and new trial ordered in second action by Walter S. A. Kimball against Harry W. Bauckman, and motion overruled in action by Geneva W. Kimball against Harry W. Bauckman.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and FARRINGTON, JJ.

Harry E. Nixon and Jacob H. Berman, both of Portland, for plaintiffs.

Harry C. Wilbur and Leon V. Walker, both of Portland, for defendant.

STURGIS, J.

These three actions of negligence were tried together, and, after verdicts for the plaintiff in each case, come to this court on general motions and exceptions.

In the forenoon of February 18, 1931, as the plaintiff Walter S. A. Kimball, a physician living in Portland, Me., accompanied by his wife, Geneva W. Kimball, drove his Ford town car towards Auburn along the state highway in the town of New Gloucester, he collided practically head-on with the Ford coupe which the defendant was driving in the opposite direction towards Portland. Referring to these cases by their numbers in this court, but out of order, Dr. Kimball in No. 325 alleges that this collision was due solely to the defendant's negligence, and seeks to recover for his personal injuries and damages to his automobile. In No. 310, he sues for his expenditures and losses growing out of his wife's injuries, and in No. 326 the action is brought by Mrs. Kimball to recover compensation for her personal injuries.

Motions. The evidence tends to show that it was snowing hard when this collision occurred, and the road was covered with several inches of snow. The plaintiffs were driving into the storm, but the defendant rode with it. Dr. Kimball's car had no tire chains. The defendant's car had chains. The road was practically straight where the cars met, and was plowed out, but banked several feet high on the sides with snow. Both cars had windshield wipers, and the glass in front of the drivers was clear, but in front of Mrs. Kimball the windshield was covered with snow, and her view ahead was shut off.

For some miles before he reached the scene of the collision, Dr. Kimball had been following a large truck described as a van. After several unsuccessful attempts to pass the truck which held the center of the road, seeing the truck swinging to the right, he turned out to the left, speeded up his car and started to go by. He says the truck was then going about eighteen miles an hour, and fixes his speed at "about twenty to twenty-three or twenty-five miles an hour." As he "got started in there a little ways * * * hadn't got hardly to the hind wheel," he saw the defendant coming straight towards him, as he says, one hundred twenty-five feet away. Asked as to his exact location in respect to the truck when he first saw the defendant's car, Dr. Kimball says, "The front end of my car must have been two-thirds up that car, up that truck." And to the question, "How far did you go forward on the roadway from the time when you nosed out so that your front end got out from behind the truck up to the time when you say you were two-thirds of the way along the truck?" he replied, "I don't know, but 1 guess about twenty-five or thirty feet." The doctor also said that the moment he saw the defendant coming he threw out his clutch and applied his brakes, advancing only twenty feet when he was struck. He admits his car was moving when the impact came, and states that the truck had left him and "was going away from me when we hit." As to the defendant's slowing down before the collision, Dr. Kimball's statement is, "I couldn't tell you. I didn't notice. I was trying my best to think and get out of my own muddle. I couldn't tell you. He was fast when I saw him and then it was quickly over."

The defendant told the jury that as he approached the place where the cars collided his windshield was cleared with a wiper and a sleet chaser, which melted the snow as it fell, and his vision was in no way obstructed. The road was straight, and in the distance ahead he saw a large truck and at least two cars behind it coming towards him. He says that, when the truck was at least three hundred feet from him, seeing the Kimball car come out from behind it, he slowed up his car, but the Kimball car dropped back, and he resumed his speed of twenty-five miles an hour. When the distance had shortened to one hundred twenty feet, the Kimball car came out again from behind the truck, and, seeing the two coming side by side towards him, he says he "instantly" threw out his clutch, applied his brakes, and swerved to the right to the edge of the snow bank. His estimate of the speed of the on-coming Kimball car is thirty-five miles an hour. He does not know whether it slowed down or not, except that, as he says, he was going five miles an hour when he struck, and the Kimball car was traveling even faster.

Mrs. Kimball could not see through the snow-covered windshield in front of her. Her testimony neither adds to nor detracts from the essential assertions made by her husband. The driver of the truck did not see the collision. He says he was going about twenty-five miles an hour until just before it occurred, and states that the defendant passed the front of his truck traveling very slowly. The driver of a car following Dr. Kimball estimates their speed just before the collision as twenty-five miles an hour, but, with his view ahead cut off by the truck, can give little accurate information as to the relative positions or operation of the cars which collided. Neither the location nor the condition of the automobiles after they came together shed clear light on what actually occurred.

Negligence. The defendant undoubtedly had the technical right of way. But this did not relieve him from the exercise of reasonable care. The supreme rule of the road is the rule of mutual forbearance, and, if a situation indicates a collision, although it arises from the fault of another, ordinary prudence requires the driver of a motor vehicle to seek to avoid a collision, though this involve the waiver of his right of way. Fitts v. Marquis, 127 Me. 75, 140 A. 900; Ritchie v. Perry, 129 Me. 440, 152 A. 621; Tomlinson v. Clement Brothers, 130 Me. 189, 154 A. 355.

From the time the defendant saw Dr. Kimball come out from behind the truck in his final attempt to pats it, a head-on collision was inevitable, unless the cars were stopped or the Kimball car slowed down and dropped back into its own lane. If, as the defendant says, the cars were forty yards apart when he first saw the Kimball car turn out, his estimate of its speed, when compared with that which he fixes as his own, permitted a conclusion by the triers of fact that an immediate effective application of the brakes of his Ford coupe, equipped as it was with chains, would have stopped it in a comparatively short distance, and there would have been no collision. The defendant's own testimony warrants the inference that although, so far as he knew, Dr. Kimball, after he turned out, made no attempt to drop back or to bring his car to a stop, nevertheless for a time at least the defendant drove ahead without any substantial decrease in his own speed. His defense that he applied his brakes "instantly" is not borne out by the evidence. We are of opinion that, while the issue is not free from doubt, the jury, upon a consideration of all of the evidence, were not clearly wrong in finding that the defendant was negligent.

Contributory Negligence. Dr. Kimball, when he turned out, was on the wrong side of the road where automobiles coming from the opposite direction had the right of way. His duty to anticipate the possibility, if not probability, of the presence of such approaching cars, charged him with a degree of care commensurate with the increased risk incident to his turn into the left lane. Until a clear vision disclosed a stretch of unobstructed road which would permit a safe passage out by the truck ahead, it was not due care to swing to the left of the center line of traffic unless he had such control of his car as would permit a drop back into his own proper lane when the impossibility of a safe passing was apparent. If, as ho says, he "hadn't got to the hind wheel" of the truck when he saw the defendant coming straight towards him and one hundred twenty-five feet away, no good reason appears for his failure to then slow down, allow the truck to leave him, and himself drop back into line. But if, as he also says, he had overtaken and brought his car two-thirds up...