Larrabee v. Sewall

• Decision Date: 31 May 1877
• Citation: 66 Me. 376
• Parties: AMOS A. LARRABEE AND WIFE v. EDWARD SEWALL. 1876.
• Court: Maine Supreme Court

66 Me. 376

AMOS A. LARRABEE AND WIFE v. EDWARD SEWALL.

1876.

Supreme Judicial Court of Maine.

May 31, 1877

ON EXCEPTIONS AND MOTION.

TRESPASS for collision on the highway, in substance, that on March 14 1875, the plaintiff, wife, was carefully driving on the right side of Washington street, Bath, and the defendant approaching to meet her, so carelessly drove as to induce a collision of carriages, by which she was thrown out; that the main trunk of the right sciatic nerve was thereby injured resulting in great pain and introversion of her foot and permanent lameness.

The plea was not guilty, with brief statement that since the commencement of the action, and pending the same, August 1 1875, the defendant paid the plaintiffs the sum of $1500, and that the plaintiffs received the same in full satisfaction of the action, and by their writing released the defendant from all liability; and further, that the collision was on the part of the defendant, an inevitable accident, and that the carelessness of the plaintiff contributed thereto.

The testimony on the part of the plaintiff, wife, was in substance, this: " I left my home in Phippsburg, twelve miles off with my eight year old son, shortly before sunset, with horse and wagon, to meet my husband at the house of Frank O. Moses, on Washington street, Bath, whose wife was my husband's sister; arrived in Washington street about eight o'clock, when crossing North street saw defendant's horse and chaise some rods away, pass Pearl street light, and did not lose sight of them till the collision on the east side of Washington street, just past the north corner of Grove; was driving very slowly, kept reining my horse toward the sidewalk; just as I passed Grove street, the left fore wheel of his carriage struck the left hind wheel of mine. I had the rein in my right hand, I went right out over the dasher on to the hard frozen ground, struck upon my right side in the gutter, very near the curbstone, was hurt upon my right arm, my right hip and whole right side." The plaintiff stated her injuries more at length, how she was taken up by Mr. Litchfield, how she was assisted to the house of her brother-in-law, Moses, by Mr. Sewall, the defendant; how Dr. Briry was called in, examined her, treated her; how much pain she suffered; how after eight days she returned to Phippsburg by wagon; how within a few weeks she returned to Bath for medical advice, was examined by Dr. Payne and prescribed for, after which had better feelings, but no permanent benefit, and rather grew worse; afterward found the seat of her injury to be the sciatic nerve in the main branch; that this nerve suffered a concussion, a shock, the effect of which had spread by sympathy to other parts; the loss of nervous power had so affected the muscles of her lower limb, that her foot turned in, so that she walked upon its side; that the callouses of the foot produced by walking, were found upon the side, and not as is usual, upon the bottom; that she has been continually lame, growing no better, and scarcely ever free from pain; that she received the fifteen hundred dollars, and gave a receipt in full. Her testimony tended to show that it was obtained through undue influence, over-persuasion, and fraud on the part of Moses and Marr, agents of the defendant; that she had tendered the money back, and on the defendant's refusal to accept it, she deposited it in court.

Other testimony on the part of the plaintiff, tended to show, that at the time of the collision, the plaintiff's horse was close to the sidewalk, on the right side of the road; and the street was lighted from lamp posts, stores, and dwelling houses.

The testimony of the defendant was in substance, that it was very dark, that he was driving slowly, endeavoring to keep to his right; that a light just manifested itself from a window, as he saw and heard this carriage coming, that he immediately pulled up his horse, and found there had been a collision.

At the trial, which lasted nine days, the defendant's counsel requested fourteen specific instructions, of which Nos. 4, 6, and 12, were given in substance in the charge, Nos. 11, 13, 15, 16, and 17, not given except as in the charge, and the following not given:

" I. If Mr. Gould acting for the defendant, told Moses that if he would get such a discharge from the plaintiffs, as Mr. Charles Larrabee should write, he would be responsible to him, (Moses) for the sum of $1500, and Moses thereupon received from Mr. Larrabee the form of the discharge, ready for execution, which has been proved in this case, and carried it to the plaintiffs, and they executed it and delivered it to Moses, and Moses gave them $1500, the defendant thereupon became responsible to Moses for the $1500, and Moses from that time held the discharge as the agent for the defendant; and the plaintiffs could not withdraw it from his hands without the defendant's consent, or the consent of Moses.

III. That there is no evidence in the case which will justify the jury in finding that Moses was the agent for the defendant, until after his interview with the plaintiffs on Friday, the day before the settlement; and that defendant cannot be held responsible for anything which was said by Moses or Marr at the time of that interview.

V. That there is no such evidence of fraud in this case, as will authorize the jury to find that the discharge was procured by fraud.

VIII. That if the representation was made to the plaintiffs by Moses or Marr, that the defendant was using his money to hire witnesses to testify, such a representation, if made as a matter of fact, was not sufficient to authorize the jury to set the discharge aside.

X. That the advice or persuasion of Moses or Marr, if given to plaintiffs at the time of the settlement, not to consult their counsel, was not a fraud, and furnishes no ground for setting the discharge aside.

XIV. That even if defendant was on the wrong side of the street, and the plaintiff saw his carriage in season to avoid the collision, and had an opportunity to do so before it took place, by the exercise of ordinary skill and care, and neglected to do so, she was guilty of negligence and cannot prevail in this case; and if she saw defendant's carriage in season to turn her horse and carriage into the head of Grove street, or to stop her carriage before the collision, it was her duty to do so."

The verdict was for the plaintiffs for $3000.

To the foregoing, with other rulings, the defendant alleged exceptions.

A. P. Gould & J. E. Moore, for the defendant.

W. Gilbert, for the plaintiffs, submitted without brief.

DICKERSON J.

Exceptions are taken by the defendant to the refusal of the court to give certain requested instructions, the want of fulness in giving others, and the rulings upon the admission and exclusion of testimony. We shall consider only the exceptions relied upon in the argument, regarding the others as waived.

Great importance is attached in the argument to the alleged refusal of the court to give the fourteenth requested instruction which was as follows: " that even if the defendant was on the wrong side of the street, and the plaintiff saw his carriage in season to avoid the collision, and had an opportunity to do so before it took place, by the exercise of ordinary skill and care, and neglected to do so, she was guilty of negligence and cannot prevail in this case; and if she saw defendant's carriage in season to turn her horse into the head of Grove street, or to stop him before the collision, it was her duty to do so."

This request contains two propositions; and if either of them is erroneous in law, the court properly refused to give the instruction requested. The second proposition is obviously incorrect. Whether it was the plaintiff's duty to turn his horse and carriage into Grove street, or to stop there depended upon the demand of ordinary care, under all the circumstances of the case; that is a mixed question of law and fact for the jury under appropriate instructions by the court. The court will not, except in very extreme cases, even where the facts are admitted or undisputed, determine the question...