Neal v. Rendall

• Citation: 56 A. 209,98 Me. 69
• Parties: NEAL v. RENDALL.
• Decision Date: 18 August 1903
• Court: Supreme Judicial Court of Maine (US)

56 A. 209

98 Me. 69

NEAL

v. RENDALL.

Supreme Judicial Court of Maine.

Aug. 18, 1903.

(Official.)

Report from Supreme Judicial Court, Androscoggin County.

Action by Charlotte A. Neal against Daniel H. Rehdall. Case reported and remanded for trial.

The terms of the report, amounting practically to an agreed statement of facts, were as follows:

This was an action on the case for negligence. The case was opened to a jury. The testimony showed that the plaintiff, 68 years of age, was riding in a carriage with her husband. The husband, who was 72 years of age, was driving. At the time of the collision which resulted in the injuries complained of they were traveling south on Turner street, in Auburn, at a reasonable rate of speed, and on the right of the middle of the traveled part of the road, as they traveled. The traveled part of Turner street at that point was from 46 to 50 feet in width.

The defendant in a proper team, was traveling north on the same street, at a walk. But he was on the left of the traveled part of the road, as he traveled.

Both teams were thus on the west of the middle of the traveled part of the way, and the team of the defendant was nearer the middle.

The testimony tended to show that there was apparently sufficient room on the west of the middle of the traveled part of the way so that the teams could have passed without interference had they both continued as they were traveling just before the collision described in plaintiff's writ, but that just as the teams were about to meet and pass each other the horse attached to the wagon in which the plaintiff was riding became suddenly frightened, and, while still going forward, shied towards the center of the traveled part of the road, and towards defendant's team. The front left wheel of the plaintiff's carriage passed the front wheel of the defendant's team without touching it, but did come into collision with the hind wheel of the defendant's vehicle, whereby the plaintiff was thrown from her carriage, and suffered the injuries for which she claims damages in this suit.

The testimony tended to show that the two teams would have passed each other safely and without collision bad it not been for the horse's fright and shying; also that there would have been no collision bad the defendant's team been on the right of middle of the traveled part of the road.

The testimony further tended to show that the defendant had opportunity, after the plaintiff's team came into his sight, to turn to (he right of the middle of the traveled part of the road, and there was nothing to prevent his doing so; but there was no other evidence of any negligence on the part of the defendant except the mere fact of the position of his team on the left of the middle of the traveled part of the road.

The plaintiff put in evidence the following ordinance of the city of Auburn:

"The owner, driver, or person in charge of any heavily loaded vehicle, or any other team, while passing through any public street at a speed not greater than a walk, shall drive such vehicle, or other team as near as possible to the curbing on the right hand of the street so as to allow the free passage of other teams and vehicles passing along said street at a greater rate of speed." Ordinances of the City of Auburn, c. 43, § 21.

There was also evidence in the case from which the defendant might properly claim and argue that the negligence of the plaintiff's husband in driving contributed to the collision and injury. The plaintiff, on the other hand, denies that there was any such negligence.

At the conclusion of the plaintiff's testimony the parties agreed that the case should be reported to the law court upon the foregoing statement of facts, which it was agreed is a correct resume of the testimony Introduced by the plaintiff. If the law court were of opinion that the case discloses any evidence of negligence on the part of the defendant requiring the submission of the case to the jury, the court shall order the action to stand for trial; otherwise the plaintiff is to become nonsuit.

And if the action is ordered to stand for trial, the law court was asked to say whether, as matter of law, any proven negligence of the plaintiff's husband as driver, which contributed to the injury of the wife, is imputable to her, as this question will be an important and material one in the trial of the case.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, POWERS, PEABODY, and SPEAR. JJ.

W. H. Judkins and B. L. Pettigrew, for plaintiff.

H. W. Oakes, J. A. Pulsifer, and P. E. Ludden, for defendant.

POWERS, J. Action on the case for negligence. As the plaintiff was traveling south on Turner street, Auburn, in a carriage driven by her husband, at a reasonable rate of speed, and on the right of the middle of the traveled part of the road, they met the defendant, who, in a proper team, was traveling north on the same street at a walk. The traveled part of the street at this point was from 46 to 50 feet in width. Both teams were on the west of the middle part of the traveled way, and the team of the defendant was nearer the middle. Just as the teams were about to meet and pass each other, the horse attached to the wagon in which the plaintiff was riding became suddenly frightened, and while still going forward shied toward the center of the traveled part of the road and toward the defendant's team. The front wheel of the plaintiff's carriage collided with the hind wheel of the defendant's, and the plaintiff was thrown out, and suffered the injuries for which this suit is brought.

The evidence tended to show that the defendant had opportunity, after the plaintiff's team came in sight, to turn to the right of the middle of the traveled part of the road; that there was nothing to prevent his doing so; and that there was apparently sufficient room west of the middle of the traveled part of the way so that the teams could have passed without interference, had they both continued as they were traveling just before the collision. The evidence further tended to show that the two teams would have passed each other safely, and without collision, had it not been for the horse's fright and shying; also that there would have been no collision had the defendant's team been on the right of the middle of the traveled part of the way. There was no evidence of any negligence on the part of the defendant other than the position of his team on the left of the middle of the traveled part of the road. The court is to determine whether this is sufficient to require the submission of the case to a jury.

"When persons traveling with a team are approaching to meet on a way, they shall seasonably turn to the right of the middle of the traveled part of it, so far that they can pass each other without interference." Rev. St. c. 19, § 2. This is a salutary statute, enacted for the safety and convenience of all travelers. When no person is passing, of about to pass, in an opposite direction, one may travel upon any part of the traveled road which suits his pleasure or convenience, but when teams are approaching to meet the law requires them seasonably to turn to the right of the middle of the traveled part of the road. "Seasonably turn" means "that travelers shall turn to the right in such season that neither shall be retarded in his progress by reason of the other occupying his half of the way which the law has assigned to his use, when he may have occasion to use it in passing. In short, each has an undoubted right to one-half of the way whenever he wishes to pass on it, and it is the duty of each without delay to yield such half to the other." Brooks v. Hart, 14 N. H. 310. This is a regulation to avoid collisions, and, if one neglects it, and an accident follow, an explanation of the occurrence must begin with some presumption against him. Cooley on Torts, p. 666. This court has held the fact that a party was at the left of the road at the time of the collision "strong evidence of carelessness," and has said that, unexplained and uncontrolled, it would not only be strong, but conclusive, evidence of carelessness. Larrabee v. Sewall, 66 Me. 381. It is competent evidence of negligence to be submitted to a jury. Smith v. Gardner, 11 Gray, 418; Damon v. Scituate, 119 Mass. 66, 20 Am. Rep. 315; Randolph v. O'Riordon, 155 Mass. 331, 29 N. E. 583.

It is not conclusive. The law of the road is not an inflexible criterion by which to determine the question of negligence. There may be cases in the crowded streets of cities, or even upon our country roads, where a deviation from it would be both justifiable and necessary in order to avoid accident and injury. Notwithstanding the statutory duty to turn to the right of the middle of the traveled way, the defendant had the right to be upon any part of the road,...