Raymond v. Eldred

• Decision Date: 15 February 1928
• Parties: RAYMOND v. ELDRED. WING v. SAME.
• Court: Maine Supreme Court

140 A. 608

RAYMOND

v. ELDRED.

WING

v. SAME.

Supreme Judicial Court of Maine.

Feb. 15, 1928.

On motion from Supreme Judicial Court, Oxford County, at Law.

Separate actions by Samuel H. Raymond and Mary C. Wing against Byron E. Eldred. Verdict for plaintiffs. On motion for new trial. Motion sustained, and new trial granted.

Argued before WILSON, C. J., and PHILBROOK, DUNN, BARNES, and PATTANGALL, JJ.

Albert Beliveau, of Rumford Falls, for plaintiffs.

Verrill, Hale, Booth & Ives, of Portland, for defendant.

PATTANGALL, J. On motion. These actions, in which a jury awarded damages to the plaintiff Raymond for injuries to person and property, and to the plaintiff Wing for injuries to the person, grew out of an automobile collision occurring on the state highway between Rumford Falls and Dixfield, at a point approximately one mile south of Rumford Falls.

The plaintiffs were proceeding northerly from Dixfield; the plaintiff Raymond driving his car, in which the plaintiff Wing was a passenger. The defendant, accompanied by his wife and secretary, was riding in the opposite direction. The highway at this point consisted of a 16-foot strip of macadam, with a dirt shoulder on each side of approximately 3 feet, running close to the easterly bank of the Androscoggin river. Along this bank, which sloped off sharply to the river, was a railing, and on the opposite side of the road a slight ditch, beyond which a steep bank rose abruptly from the level of the road.

The automobiles collided at a point about 10 feet from a pole numbered 91/30, situated on the side of the road away from the river. Northerly of this pole there was a slight curve in the highway. The collision occurred on the easterly side of the highway, and the negligence complained of is that defendant's car was on his extreme left-hand side of the road at the time of the collision. This allegation is admittedly correct, and he was therefore guilty, prima facie, of negligence, but his explanation of the situation, if accepted as true, would relieve him of liability on that account. On the other hand, if the testimony of the plaintiffs is taken, defendant was negligent, and his negligence was the cause of the accident.

The questions involved are of fact, and ordinarily the jury findings would not be reviewed by this court. In general, the rule is that, when the testimony is conflicting, the verdict must stand, but every case which results in a verdict by a jury must present some apparent conflict of testimony, and, in order for a verdict to be sustained by this court, there must be in support of it reasonable evidence sufficiently consistent with the circumstances and probabilities of the case to raise a fair presumption of its truth. Roberts v. Boston & M. R. Co., 83 Me. 298, 22 A. 174; Moulton v. Sanford & Cape R. Co., 99 Me. 509, 59 A. 1023. If the verdict is clearly and manifestly against the evidence, it will be set aside. Gilmore V. Bradford, 82 Me. 547, 20 A. 92; Cosgrove v. Kennebec Light & Heat Co., 98 Me. 473, 57 A. 841.

The testimony of interested parties, contrary to facts' otherwise conclusively established, and contrary to all reasonable inferences to be deduced from the situation disclosed by the evidence, does not raise a conflict even requiring a finding by the jury. Moulton v. Sanford & Cape R. Co., supra.

In the instant case the defendant testified that, while driving at the rate of 15 or 20 miles an hour on the right side of the road, as he approached the curve just beyond which the accident occurred, he saw the plaintiff's car on the river side of the highway, close up against the railing, moving very slowly. He noticed a man and a woman in the car; the woman leaning over toward the railing in front of the man. He sounded his horn, and observed a motion of the hand on the part of the man, which he regarded as a signal to pass on the left; there being no room to pass on the right. He then ran directly diagonally across the road, and, when he had reached about the middle of the road, plaintiff's automobile started ahead very slowly toward plaintiff's right Defendant continued across the road, got as far out of the way as possible, and stopped on the left-hand side close to the ditch, his car being parallel with the side lines of the road, with plaintiff's car 30 or 40 feet distant, still on plaintiff's left-hand side of the road, but coming diagonally toward defendant's car. These conditions obtained until plaintiff, still driving slowly, ran into defendant's car. Defendant says that, at the time of the collision, and just previous to it, plaintiff appeared to be panic-stricken, and gave the impression of not having his car in control; that, when the cars came together, plaintiff sat fixedly in the same position in which he had been sitting, and with the same apparent stare on his face that was noticeable prior to the collision. This testimony was corroborated by defendant's wife and secretary.

It appears that some three years before the plaintiff Raymond had had an accident at the point where defendant says he first saw plaintiff's car, the accident consisting of running off the road and down the steep river bank; and it is agreed that he called his passengers' attention to the fact of the accident and the place where it occurred just before the collision. But, while Raymond admits that he did speak of this accident to Mrs. Wing, and did (without removing his hand from the steering wheel) point toward the place of the accident with his thumb, both he and Mrs. Wing say that this occurred when plaintiff's car was well over to the side of the road where the collision occurred; that they were on that side of the road all of the time; and that the collision occurred by reason of the defendant, without any justifiable cause, leaving his right-hand side of the road at the point where the curve was most pronounced and driving across the highway, stopping only when the cars collided.

This testimony, on its face, seems to warrant the findings of the jury, and, in any event, to raise a conflict so as to bring the case within the general rule governing the decision of questions of fact.

But certain physical facts appear which are worthy of serious consideration, and about which there is no controversy. Before considering them, it may be recalled that defendant claims that prior to the collision he had brought his car to a stop near the side of the highway, and parallel to it. If this is so, plaintiff's version is incorrect. A stationary car cannot very well become the active factor in a collision, occurring in broad daylight, on a highway 16 feet wide, with another car moving 8 or 10 miles an hour.

Plaint...