Martin v. Atherton
| Decision Date | 01 August 1955 |
| Citation | 151 Me. 108,116 A.2d 629 |
| Parties | Helen L. MARTIN v. Eleanor ATHERTON. Morris A. MARTIN v. Eleanor ATHERTON. Wayne L. MARTIN, pro ami, by Morris A. Martin v. Eleanor ATHERTON. |
| Court | Maine Supreme Court |
Pilot & Pilot, Gerard Collins, Bangor, for plaintiffs.
James M. Gillin, David W. Fuller, Harold A. Towle, Bangor, for defendant.
Before FELLOWS, C. J., and WILLIAMSON, TIRRELL, WEBBER, BELIVEAU and TAPLEY, JJ.
These tort cases are each before us first, on a general motion for a new trial on the usual grounds addressed to the Law Court and second, on exceptions to the denial of special motion filed with the presiding Justice after verdict and before judgment alleging misconduct of jurors in taking notes, and praying (1) that the jurors might be examined and compelled to show cause why they were not biased and prejudiced and to show that they rendered a true and just verdict, and (2) that a new trial might be granted, presumably because of the alleged misconduct.
The facts show that on September 30, 1952, at about three o'clock in the afternoon, Helen L. Martin and her son proceeded on foot to the intersection of Forest Avenue and Garland Street in the City of Bangor, where Mrs. Martin planned to cross Garland Street at the intersection, with the home of her sister-in-law as her destination. A passenger bus stationed at the intersection was put in motion when Mrs. Martin arrived at that point. She took the child in her arms and started across Forest Avenue to reach the northerly side of that highway. As she neared the opposite side, the collision complained of occurred. She was severely injured as was the child she carried in her arms.
The plaintiffs in their declarations alleged, as was necessary, that they were exercising due care and that the collision was due wholly to the negligence of the defendant. Not only were these allegations necessary but in order to be successful these two elements in the case had to be resolved in favor of the plaintiffs by the jury. This the jury failed to do.
The reading of the record discloses these salient facts.
Mrs. Martin as she reached the intersection, with the child, waited for the bus, then parked, to move along. She then made her way across Garland Street with the child in her arms, as before stated. The defendant was operating her automobile in Mrs. Martin's direction and the two came together on the further or northerly side of Garland Street. There is no evidence that the defendant was violating any municipal ordinance or the laws of this State relating to the operation of a motor vehicle. Neither Mrs. Martin nor her witness, Mrs. Botzko, testified as to the manner in which the defendant was operating the car. The record discloses that the first knowledge either one of them had was the instant the car struck Mrs. Martin.
It is true Mrs. Martin testified that when she crossed the highway she looked in both directions, on her left and on her right, and saw no car coming. In this she was wrong, as it is obvious the defendant's car was on that highway coming in her direction in close proximity to her. It was there for her to see.
Clancey v. Cumberland County Power & Light Co., 128 Me. 274, at page 278, 147 A. 157 at page 159.
The jury apparently found that the defendant's car was visible to the plaintiff and could have been seen by her if she had exercised that ordinary care which it was her duty to exercise in that situation and under those conditions.
The defendant testified that she first saw Mrs. Martin and her baby directly in front of the car and could not stop in time to avoid a collision. There is other testimony that Mrs. Martin proceeded to cross immediately in back of the bus without paying any attention to the traffic. From this and other evidence the jury concluded Mrs. Martin was guilty of contributory negligence.
While the plaintiffs took no exceptions to the charge by the presiding Justice they now complain that the following instructions, part of the charge, were not proper and can be considered on their general motion, to wit:
As authority for the propriety of raising this objection in their brief, for the first time, they rely on Cox v. Metropolitan Life Insurance Co., 139 Me. 167, 28 A.2d 143.
It is true that in some instances the court has considered matters on general motion which should have been excepted to during the trial.
Springer v. Barnes, 137 Me. 17, at page 20, 14 A.2d 503, at page 504.
The situation here is not comparable to the one which the court...
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Miresso v. State
...& St. L.R. Co. v. Miller (1874), 71 Ill. 463 (recognizing rule); State v. Keehn (1911), 85 Kan. 765, 118 P. 851; Martin v. Atherton (1955), 151 Me. 108, 116 A.2d 629; Cahill v. Baltimore (1916), 129 Md. 17, 98 A. 235 (recognizing rule); Commonwealth v. Tucker (1905), 189 Mass. 457, 76 N.E. ......
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McMann v. Reliable Furniture Co.
...cause of plaintiff's misfortune. 'Mere looking is not sufficient. One is bound to see what is obviously to be seen.' Martin v. Atherton, 151 Me. 108, 110, 116 A.2d 629, 630. Plaintiff at his trial had the burden of proving his own due care under the circumstances in which he found himself j......
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