Manchester v. Dugan

• Decision Date: 21 November 1968
• Citation: 247 A.2d 827
• Parties: Emma D. MANCHESTER, Rupert S. Manchester v. Lillian DUGAN.
• Court: Maine Supreme Court

Page 827

247 A.2d 827

Emma D. MANCHESTER, Rupert S. Manchester v. Lillian DUGAN.

Supreme Judicial Court of Maine.

Nov. 21, 1968.

Daniel C. McDonald, Edward J. Berman, and Theodore H. Kurtz, Portland, for plaintiffs.

Lawrence P. Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

WEATHERBEE, Justice.

After trial in the Superior Court, a Cumberland County jury returned a verdict in favor of the plaintiff, Mrs. Manchester, for injuries she had alleged that she had received as a result of being struck by an automobile operated by defendant in the summer of 1963. The Presiding Justice, on the defendant's motion, set aside the verdict and directed an entry of judgment notwithstanding the verdict for the defendant. M.R.C.P. Rule 50(b). The matter comes before us on plaintiff's appeal. Mr. Manchester's claim had been voluntarily dismissed before trial.

In testing the correctness of the action of the Presiding Justice in ordering judgment for the defendant n. o. v. we view the evidence in the light most favorable to the plaintiff as the judgment n. o. v. raises the same issue as would be raised by a direction of a verdict for the defendant. Jorden v. Portland Coach Company, 150 Me. 149, 107 A.2d 416 (1954); Field and McKusick, Maine Civil Practice, Section 50.4.

Plaintiff had just completed a visit at Keatings antique shop on the westerly side of U. S. No. 1 in Kennebunk and was walking up the ling gravel driveway leading to the street. It was her intention to cross the highway to her automobile which was parked on the opposite side. She testified that as traffic was passing, she stopped on the grass near the edge of the junction of driveway and highway to wait before crossing. She testified that she has no recollection of the events immediately following that moment. At some time thereafter she was in some manner and at some spot in collision with the defendant's car. There was no eyewitness testimony as to the impact between plaintiff and defendant's automobile.

The remaining facts which may be considered relevant to the cause of her injury, as disclosed by the testimony, are as follows:

The defendant, a summer visitor, was driving southerly with a lady companion returning from an excursion further north. She testified that it was her intention to visit the antique shop, too, but she was in a slow moving line of traffic-'crawling in line'-with cars so close behind and in front of her that when she saw the driveway it was too late to turn in. When she was in the highway about opposite the middle of driveway she saw the plaintiff walking toward her down the driveway and close to the highway. The defendant's companion said she saw plaintiff walking toward the road but still in the driveway when the defendant was passing the driveway and that plaintiff was never in front of the car. She testified that defendant's car never left the pavement of the highway.

After the impact plaintiff was found lying on the gravel at the edge of the highway and near the rear bumper of defendant's car. Defendant's car had come to a stop at about the southern end of the driveway. There was no damage to its front end but the antenna which was located on the right side by the windshield was broken off and was found lying on the grass 'partially towards the back of the car.' There were no marks on the highway.

Photographs in evidence show the gravel driveway to be about the width of two cars but widening in a bellshaped mouth at the highway. The road is a three lane highway and a narrow gravel strip separates it from the antique shop lawn. Trees and shrubbery grew close to the road in the area where plaintiff last remembers standing.

The plaintiff had the burden of proving negligence on defendant's part which was a proximate cause of her injury and her own freedom from contributory negligence as this injury occurred before the passage of our comparative negligence statute.

'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.' Jordan v. Portland Coach Company, 150 Me. 149, 150, 107 A.2d 416, 417 (1954).

It is easily seen that there is neither direct nor circumstantial evidence of the conduct of either party immediately before the impact from which it could properly be determined that the plaintiff was in the exercise of due care or that the defendant was not. The issue here at once becomes one of whether from any of the facts above stated the jury could properly have drawn inferences that defendant had driven negligently causing the impact and that plaintiff was using...