Orr v. City of Oldtown

• Decision Date: 10 October 1904
• Parties: ORR v. CITY OF OLDTOWN.
• Court: Maine Supreme Court

58 A. 914

99 Me. 190

ORR

v. CITY OF OLDTOWN.

Supreme Judicial Court of Maine.

Oct. 10, 1904.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Emma F. Orr against the city of Oldtown. From a Judgment of nonsuit, plaintiff brings exceptions. Exceptions overruled.

Action on the case to recover damages for injuries received by plaintiff by reason of an alleged defect in the highway in defendant town. At the conclusion of the plaintiff's testimony, on motion of the defendant's counsel, the presiding justice ordered a nonsuit on the ground that the foregoing evidence on the question of due care of Gertrude E. Perry, the person who was driving the team in which the plaintiff rode, was insufficient to warrant sending the case to the jury.

Argued before WISWELL, C. J., and EMERY, SAVAGE, POWERS, and PEABODY JJ.

W. H. Powell, for plaintiff.

F. W. Knowlton, for defendant.

SAVAGE, J. Action to recover damages for injuries sustained by reason of an alleged defect in the highway in defendant town. The case comes up on exceptions to an order of nonsuit for want of evidence of due care on the part of the driver. We think the order was right. The presiding justice would have been warranted in finding that the evidence, such as it was, showed affirmatively and unmistakably a want of due care by the driver. The alleged defect consisted in what is called in the case a "hole" beside the road, not more than 30 feet from the plaintiff's house. A drain pipe had been laid alongside the road, on the same side and in front of the plaintiff's house, terminating about 30 feet distant therefrom. The ditch in which the pipe lay was filled about to the level of the road, nearly as far as the end of the pipe. From this point the ditch, unfilled, three feet deep and four feet wide, extended still further. The embankment where the fill ended was nearly perpendicular. The plaintiff claimed and testified that tall grass on the sides of the road had "grown right out straight" over the ditch, so that the precise edge of the hole, or end of the ditch, was somewhat obscured or "blind." Between the ditch and the traveled portion of the way was a strip of grass ground, two feet wide, at the end of the ditch. Then, widening, it extended from the end of the ditch past the front door of plaintiff's house, between the sidewalk and traveled way. At the end of the ditch the traveled way was 21 1/2 feet wide between the grass strip and the shoulder of the electric railway bed on the other side of the road. Some time previously a water pipe had been laid in the street at a distance varying from seven to nine feet from the edge of the ditch containing the drain pipe, it being the longer distance at the end of the drain pipe. When the ditch for the water pipe was refilled, earth was left somewhat above the level of the road. At the time of the accident it had not completely settled, and there still remained a ridge or "mound," as the plaintiff calls it, two or three feet wide at the bottom, rounding over, and three inches high in the middle. This ridge extended to a point in front of the plaintiff's house. Otherwise the traveled way was level and smooth.

On the day in question the plaintiff and her sister-in-law, Mrs. Perry, with two small children of the latter, had driven out with a team to make some calls. Mrs. Perry drove, and the plaintiff sat upon the left side of the wagon, holding one child in her lap, with her arm around the other. On their return, they stopped a moment in front of the plaintiff's house, the off wheel standing on the grass strip between the sidewalk and traveled way. They then started to make another call. They drove along in the direction of the ditch or "hole," 30 feet distant. Mrs. Perry drove so far to the right that the off wheel all the time kept on the grass, and the measured distance shows that the horse, if not on the grass, must have traveled close to the line between the grass and the traveled way. As Mrs. Perry was sitting on the right-hand side of the wagon, the ditch was directly in front of her, and, even if it was "blind" at the "hole" by reason of the grass, it was clearly in sight a few feet further on, as the photographs in the case show. Nevertheless she drove "right straight on," turning neither to the right nor left and when the off wheel reached the hole it dropped in, and the plaintiff was thrown out and somewhat...