Moore v. Fenton

• Decision Date: 05 April 1972
• Parties: Raymond E. MOORE, d/b/a Moore Oil Company v. Hancock G. FENTON.
• Court: Maine Supreme Court

Page 698

289 A.2d 698

Raymond E. MOORE, d/b/a Moore Oil Company v. Hancock G. FENTON.

Supreme Judicial Court of Maine.

April 5, 1972.

Rudman, Rudman & Carter, by Torrey A. Sylvester, Gene Carter, Bangor, for plaintiff.

Fenton, Griffin, Chapman & Burrill, by William Feton, Bar Harbor, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK, and ARCHIBALD, JJ.

WERNICK, Justice.

Plaintiff has appealed from a judgment for defendant entered upon a verdict in favor of the defendant which was directed by the presiding Justice at the close of plaintiff's evidence presented during a jury trial.

We sustain the appeal. ¹

Plaintiff seeks recovery for damages to his oil delivery truck allegedly sustained in a collision with an automobile operated by the defendant.

I

When the presiding Justice directed the verdict for defendant he gave as the basic reason:

'There is no evidence in this case of any negligence of the defendant, I haven't seen any-not one word.'

In the assessment of the correctness of this approach by the presiding Justice we commence with the familiar principle applicable generally to the evaluation of the validity of a directed verdict. We consider the evidence, whenever reasonably possible, in the light most favorably in support of the position of the party against whom the verdict was directed-in the present instance, the plaintiff.

On this basis, there is direct evidence sufficient to warrant the following conclusions of fact.

On December 23, 1963 plaintiff, by his duly authorized employee ² at approximately 1:30 in the afternoon, was operating his 1956 Ford oil delivery truck, fully loaded with approximately 1500 gallons of oil, and weighing nine tons. He was proceeding in a southerly direction on Main Street (Route 3) (Main Street running generally northerly and southerly) at the outskirts of Bar Harbor, Maine. As he approached a right angle intersection of Main Street with another street, known easterly of Main Street as Livingston Road and westerly as Park Street, an automobile operated by the defendant was approaching on Livingston Road, converging on the intersection from plaintiff's left and proceeding in a westerly direction. ³ A stop sign regulated the traffic entering the intersection from Livingston Road. ⁴ Plaintiff knew that Livingston Road traffic was controlled by a stop sign.

The two vehicles collided in the intersection at a place at which plaintiff's oil truck was situated in its own right lane. The area of impact between the two vehicles was at the middle of the intersection, but the cab portion of plaintiff's oil truck had gone beyond the middle of the intersection into the southwesterly quadrant. The automobile operated by defendant struck against the oil truck, broadside, on the left hand side of the truck just behind the cab. The impact caused the rear wheels to come off the truck and its brakes to be lost.

The truck went out of control and 'skided along' heading in a southwesterly direction along Main Street until it struck a glancing blow against a tree (situated in an area on Main Street southwesterly of the intersection) and came to a stop aside the tree approximately 105 feet from the place of original impact. The oil truck was extensively damaged on its left side behind the cab toward the rear.

The automobile operated by the defendant came to a stop after the impact on Main Street in the southeasterly quadrant of the intersection and facing in a southeasterly direction. It was extensively damaged on its right front and right front-side areas.

The weather was clear and the streets were dry and bare of any accumulations of snow or ice. Main Street was basically level in the general area here involved. During the course of a 'short distance' along Main Street, as plaintiff had passed one prior intersecting street and was proceeding toward the intersection with Livingston Road, plaintiff had first slowed down (in the vicinity of the prior street, as he followed another vehicle which had slowed to make a turn off Main Street) and had shifted into second gear. As he then proceeded along Main Street he was in the process of shifting through the balance of the truck's five gears, but the evidence fails to disclose which gear plaintiff had actually attained as he came to the intersection and entered it.

From these facts shown directly by the evidence, and with the evidence considered most favorably for the benefit of plaintiff, the following additional conclusions of fact could properly have been inferred by a jury.

Drawing legitimate inferences from the foregoing circumstances as to (1) the place in the intersection at which impact occurred, (2) the area and extent of damage to the vehicles, (3) the course of the plaintiff's oil truck after impact, (4) the spots at which both vehicles ultimately had come to rest after impact, (5) the directions in which they were then facing, and including the direct testimony of the plaintiff regarding what he knew and saw immediately before impact had occurred, a rational jury could justifiably conclude that (a) plaintiff, knowing of his legal right of way, was the first to commit his motor vehicle to enter the intersection and did, in fact, first enter the intersection at a speed which was reasonable and moderate, generally, for entering into an intersection; (b) the speed of the automobile operated by defendant was too rapid at the time of impact to be consistent with the fact that defendant had made a complete stop at the stop sign and had then started from a dead stop into the intersection; (c) therefore, and even though plaintiff had already first entered the intersection and was in the process of proceeding through it, defendant went through the stop sign without stopping, thereby violating a statutory rule of the road; and (d) as a result, defendant ran into the vehicle of plaintiff striking it broadside and largely in the middle and rear area of the side while plaintiff's vehicle was in its own right lane and when at least the front part of plaintiff's vehicle had already achieved a place more than half way across the intersection.

With the evidence authorizing the foregoing conclusions of fact, the presiding Justice erred in directing a verdict for defendant on the ground that the evidence failed entirely to show negligence of the defendant. Especially since a violation by defendant of a statutory rule of the road was sufficiently indicated, the evidence was surely adequate to raise jury issues regarding the proximate causational negligence of the defendant.

II

In the course of his remarks explaining his reasons for directing a verdict for defendant, the presiding Justice added a comment.

'. . . of course, your man (plaintiff) says he never saw anything.'

This statement was the presiding Justice's reaction to the testimony of plaintiff's employee, Durwood G. Coffin, who was operating the oil delivery truck.

The testimony of Mr. Coffin was as follows:

'Q Would you describe to the Court then what happened as you approached this intersection?

'A Well, I approached it normally; I didn't see anything until I see a car out of the corner of my eye right here.

'Q What called your attention to that, if you recall?

'A I don't know, I just happened to see it, that's all.

'Q How far away was this vehicle when you first saw it?

'A Well, a matter of five or six feet-I mean, there was nothing I could do.

'Q Which side was it?

'A On the driver's side.

'Q That would be the left hand side of your truck?

'A Yes.'

'Q Now, as you approached this intersection, did you see any vehicles approaching or in the intersection, either from your right or your left, or straight ahead?

'A No, I didn't.

'Q Would it be a fair thing to say then that the intersection was clear as you approached it?

'A I don't know, I wouldn't say one way or the other.

'Q But as far as you can recall, you didn't see any vehicles in the intersection as you approached it?

'A I did not.'

'Q And how far away, again, was the car when you first saw it?

'A Oh, four or five feet. I thought it was going to end up in my lap.'

In view of this testimony, the comment of the presiding Justice-that plaintiff 'says he never saw anything'-can meaningfully suggest a possibly valid basis for a directed verdict in favor of defendant only if it is interpreted to signify that the operator of the oil delivery truck must be held guilty of contributory negligence as a matter of law because the evidence requires, as the sole rational alternative, the conclusion that plaintiff had failed to see defendant's vehicle on Livingston Road, as something which was obviously to be seen, at an earlier time than plaintiff in fact saw it.

In his argument before this Court defendant assigns such interpretation to the remark of the presiding Justice. He further adverts to the testimony of Mr. Coffin on cross-examination as follows:

'Q You weren't looking into Livingston Road, were you?

'A No.

'Q You were looking straight down the highway?

'A Well, just as you would generally drive, I mean.'

Defendant maintains that this testimony discloses, as the reason for Mr. Coffin's failure to see defendant's automobile much earlier, that plaintiff had not looked but was watching only straight ahead and was thereby relying solely upon his peripheral vision.

Thus armed, defendant contends that the directed verdict in his favor was legally proper on the principle that plaintiff has the ultimate burden of proof to establish his freedom from contributory negligence. ⁵

When, as here, a directed verdict against the plaintiff as the party having the ultimate burden of proof is asserted to be proper because the evidence must be said to have settled the issue of contributory negligence 'as a matter of law' adversely to the plaintiff, there is a semantic ambiguity likely to cause confusion in analysis unless the ambiguity is exposed and clarified.

In one sense the above words can mean that plain...