Moses v. Scott Paper Company

• Citation: 280 F. Supp. 37
• Decision Date: 08 February 1968
• Docket Number: Civ. No. 9-186.
• Parties: Reny MOSES of Waterville, County of Kennebec, State of Maine, Guardian of Henry Moses, Jr., of said Waterville, Plaintiff, v. SCOTT PAPER COMPANY of Chester, Pennsylvania, Bates Manufacturing Company, Inc. of State of Delaware, Kennebec River Pulp and Paper Company, Inc. of State of New York, Milstar Manufacturing Corporation of the State of Delaware, and The Commonwealth System, Inc., of the Commonwealth of Massachusetts, Defendants.
• Court: U.S. District Court — District of Maine

280 F. Supp. 37

Reny MOSES of Waterville, County of Kennebec, State of Maine, Guardian of Henry Moses, Jr., of said Waterville, Plaintiff, v. SCOTT PAPER COMPANY of Chester, Pennsylvania, Bates Manufacturing Company, Inc. of State of Delaware, Kennebec River Pulp and Paper Company, Inc. of State of New York, Milstar Manufacturing Corporation of the State of Delaware, and The Commonwealth System, Inc., of the Commonwealth of Massachusetts, Defendants.

Civ. No. 9-186.

United States District Court D. Maine, S. D.

February 8, 1968.

COPYRIGHT MATERIAL OMITTED

Julius B. Levine, Morton A. Brody, Waterville, Me., for plaintiff.

Joseph B. Campbell, Augusta, Me., Richard D. Hewes, Edward T. Richardson, Jr., Harrison L. Richardson, Jr., Portland, Me., Brown, Wathen & Finn, Augusta, Me., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DIRECTION FOR ENTRY OF JUDGMENT

GIGNOUX, District Judge.

This is an action to recover damages for personal injuries and property damage sustained by the plaintiff's adult ward, Henry Moses, Jr., as the result of an automobile accident which occurred on June 15, 1966, at approximately 8:30 a. m., at the intersection of Route 11 (also known as Route 137) and the Country Club Road, so called, in Oakland, Maine, between an automobile driven by Henry Moses, Jr., and an automobile driven by Otis Z. Bacon. Plaintiff alleges that at the time of the accident Bacon was acting within the scope of his employment by all the defendants except the defendant The Commonwealth System, Inc., rendering said defendants liable for any damages caused by Bacon's negligence under the doctrine of respondeat superior. Plaintiff also alleges that the automobile being driven by Bacon at the time of the accident had been rented by the defendant Commonwealth to one of Bacon's employers, rendering Commonwealth also liable for any damages caused by Bacon's negligence, pursuant to 29 M.R.S.A. § 1862 (1964).

At a pre-trial conference held on October 10, 1967, the parties waived jury trial and agreed that a separate trial be had of: (1) the issues of liability and damages, and (2) the issues of agency and Commonwealth's statutory liability. The parties also agreed that if the Court should find for the plaintiff against the defendants for an amount of damages not in excess of $200,000, judgment would be entered against the defendants without hearing or determination of the issues of agency and Commonwealth's statutory liability, these issues to be tried only if the Court finds for the plaintiff in an amount in excess of $200,000.

At a final pre-trial conference limited to the issues of liability and damages, held on December 26, 1967, the parties agreed that there was no question as to the jurisdiction of this Court; that the allegations of the complaint, to the extent admitted by the answers, were true; and that the Court should receive and determine first the evidence with respect to the issue of liability, and thereafter hear and determine the evidence with respect to the issue of damages if the liability issue is resolved in favor of the plaintiff. The parties further agreed that the accident occurred when the Moses car, which was proceeding westerly on Route 11, started to make a left turn into the Country Club Road, and collided with the Bacon car, which was proceeding easterly on Route 11.

Having considered the evidence and arguments with respect to the issue of liability presented by the parties at a trial held on February 1 and 2, 1968, the Court now makes its findings of fact and conclusions of law and directs entry of its judgment, as follows:

FINDINGS OF FACT

The Court's findings of fact are:

1. On June 15, 1966, at approximately 8:30 a. m., Henry Moses, Jr. of Waterville, Maine, was the operator of a 1962 Ford four-door sedan proceeding westerly on Route 11 in the Town of Oakland, Maine; Otis Z. Bacon was the operator of a 1965 Chevrolet station wagon proceeding easterly on Route 11; and a collision between the two automobiles occurred at the intersection of Route 11 and the Country Club Road, so called.

2. At the time and place of the accident, both Route 11 and the Country Club Road were public highways; the weather was clear; the road surfaces were dry; it was daylight; the visibility was excellent; and it was not unusually windy. Route 11 was a fourlane bituminous concrete highway running in a generally easterly and westerly direction between Waterville and Oakland, Maine; its paved surface was approximately 54 feet wide; each lane was between 13 and 14 feet wide; the eastbound and westbound lanes were separated by a painted double yellow barrier line; the curb and passing lanes in each direction were in turn separated by a painted broken white dividing line; and there was a gap in the barrier and dividing lines in the area of the intersection of Route 11 with the Country Club Road. The posted speed limit on Route 11 was 45 miles per hour. It had a 2% downgrade from west to east. There was a clear and unobstructed view along Route 11 in both an easterly and westerly direction for a distance of at least 500 feet from its intersection with the Country Club Road. The Country Club Road intersected Route 11 from the south approximately at a right angle and did not continue across Route 11 to the north. It was controlled by a stop sign.

3. At the time of the accident, Henry Moses, Jr. was 32 years old. He was in good physical condition except that he had only light perception in his right eye. He was wearing both prescription glasses (to correct the vision in his left eye) and sun glasses. He had left his home in Waterville shortly after 8:00 a. m. for the purpose of taking a gun for repair to a local gunsmith. Otis Z. Bacon was 45 years old. He was an engineer employed by the owners of the Brassua Dam, so called, to supervise the operation of the Kennebec River. He was in good physical condition, except that he had had tuberculosis and wore ace bandages on both legs to relieve some leg discomfort of an undisclosed nature. He had left his residence in Oakland at approximately 8:00 a. m.; had stopped briefly at a Chevron Service Station on Route 11 approximately 9/10 of a mile from the scene of the accident; and was proceeding to his office in Waterville. There were no passengers in either the Moses or the Bacon car, and there are no other known eyewitnesses to the accident. Both Moses and Bacon were thoroughly familiar with the area, having driven through it many times. Both of their cars were in good mechanical condition.

4. Immediately prior to the accident, Henry Moses, Jr. was proceeding in a westerly direction along Route 11 in the westbound curb lane, at a speed of between 20 and 25 miles per hour. Otis Z. Bacon was proceeding in an easterly direction along Route 11 straddling the dividing line between the eastbound curb and passing lanes, at a speed of between 55 and 65 miles per hour. There was no other traffic on the highway. Without giving any signal or other warning, Moses, after entering the area of the intersection of Route 11 with the Country Club Road, made a left turn from the westbound curb lane across the westbound passing lane and into the eastbound passing lane of Route 11 in the direction of the Country Club Road, proceeding at a speed of approximately 15 miles per hour. When Bacon saw the Moses car making a left turn into his path of travel, he immediately applied the brakes on his car and attempted to veer to the right in an effort to avoid a collision. He was unable to turn right because his brakes locked, and his car skidded straight ahead a distance of 96 feet before making contact with the Moses car. When Moses became aware of the approaching Bacon car, he immediately applied his brakes in an effort to avoid a collision. The brakes locked, and his car skidded in a straight line for a distance of 5 feet 4 inches before it made contact with the Bacon car. The cars met at a point in the dividing line between the eastbound curb and passing lanes of Route 11, within the gap in the broken line at the intersection. The collision involved the left front of the Bacon car and the right front of the Moses car, the paths of the cars intersecting at an angle of between 120 and 130 degrees. At the moment of initial contact the speed of the Moses car was approximately 10...