Marr v. Hicks

• Decision Date: 01 September 1938
• Citation: 1 A.2d 271
• Parties: MARR v. HICKS (two cases).
• Court: Maine Supreme Court

1 A.2d 271

MARR

v. HICKS (two cases).

Supreme Judicial Court of Maine.

Sept. 1, 1938.

On Motion from Superior Court, Oxford County.

Separate actions by Etta M. Marr and her husband, Ellsworth C. Marr, against John S. Hicks for injuries sustained in a collision between an automobile owned and operated by the husband and an auto mobile of the defendant, wherein a verdict of $1,500 was returned in favor of the wife and a verdict of $925 was returned in favor of the husband. On motions for new trials.

Motions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Alton C. Wheeler, of Auburn, and Frank W. Bjorklund, of Norway, for plaintiffs.

Frank T. Powers, of Lewiston, and Robert B. Dow, of Norway, for defendant.

MANSER, Justice.

Two cases tried together, and arising out of an automobile accident. Etta M. Marr, the plaintiff in one, was a passenger in the car driven by her husband, Ellsworth C. Marr, the plaintiff in the other suit. Mrs. Marr recovered a verdict of $1,500 for pain and suffering and for loss of wages for her personal labor as an employee in a shoe shop. The latter element of damage is alleged in her declaration, and her right to recover therefor, if entitled to damages at all, is not disputed. R.S. Ch. 74, Sec. 3. The declaration in the writ of Ellsworth C. Marr alleges in two counts damages to the car owned and operated by him and loss of the services and consortium of his wife, with expenses in her behalf chargeable to him. A single verdict of $925 was rendered in his favor.

The cases come up on motions for new trials. There were no exceptions. The familiar rule by which the Court must be guided is succinctly stated in Searles v. Ross, 134 Me. 77, 181 A. 820, 821:

"In considering these motions, we must view the evidence in the light most favorable to the plaintiffs. On the defendant is the burden of proving that the jury's verdicts are manifestly wrong."

The accident happened on March 15, 1937 at about 3:30 P. M. No claim is advanced by the defendant that either of the plaintiffs was guilty of contributory negligence, and the evidence would not warrant such claim. The locus of the accident was on the white cement road near the southern end of the village of Norway. There was credible evidence, from which the jury would be justified in finding that the plaintiffs and two other passengers had just started from a gasoline filling station, and their car was traveling down grade on the right hand side of the road. The cement construction is eighteen feet wide, but the travelled portion was narrowed two feet by snow banks on either side. The roadway was straight for a considerable distance. Weather conditions were bad. There had been a fall of about three inches of wet, damp snow, very little of which remained on the roadway itself but the pavement, according to several witnesses, including the defendant and a State highway officer called by him, was very slippery. The defendant, driving alone in a Ford car, admitted that he knew it was a very bad place, that the road seemed narrower there than anywhere else, and he was getting into the settled part of the village. The cars were in clear view when they were 250 to 300 feet away from each other. Testimony for the plaintiff was that the defendant's car was first seen approaching somewhat to the left of the center line, that when about 150 feet distant, the defendant started to veer to his right when the car skidded sidewise for a space of 40 feet and then straightened out, but kept on approaching without diminution of speed and collided with the plaintiffs' car head on. Other testimony estimated the defendant's speed at 30 to 35 miles an hour. The plaintiffs' car was practically stopped at the moment of collision. There was substantial agreement from all observers, including the defendant, that his car bounced back from the force of the impact a distance of 6 or 7 feet, while the plaintiffs' car was moved but an inch or two. After the collision the defendant's car was at rest almost entirely on his left hand side of the way.

The version of the defendant is that he was traveling very slowly, approximately 20 miles per hour, on his right hand side of the way when a rough spot was encountered, his car began to skid, he applied the brakes "pretty hard", the wheels locked and the car, absolutely uncontrollable, slid from 30 to 40 feet into the car of the plaintiffs.

It is not unusual or uncommon under certain conditions' for a car to skid and, for the moment, be out of control without fault on the part of its operator. Experience teaches the proper method to promptly end such skidding, and it might well be a jury question as to whether the defendant, a driver for fifteen years, was negligent in not adopting such method, or whether there had been time and opportunity to do so.

Further, the defendant admitted that he knew the abrupt and continued application of brakes to wheels travelling over a slippery surface would accentuate the tendency to skid and prolong its performance.

The case for the plaintiffs need not rest solely on these assumptions of negligence, however. The jury had a right to conclude that the proven physical facts led to the rational inference that undue speed was a contributing factor; that the skidding had ended, and there had been reasonable subsequent opportunity to avoid the accident.

The statutory regulation affirms the rule of the common law, and makes manifest the duty resting upon automobile operators.

"Any person driving a vehicle on a way shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing." R.S. Ch. 29, Sec. 69.

The defendant assumes that the evidence preponderates in support of the claim that skidding of his car continued to the moment of impact, and places...