Reed v. Rule

• Decision Date: 22 July 1977
• Citation: 376 A.2d 445
• Parties: George H. REED, III, a minor, by Suzanne G. Reed, Individually and as mother and next friend v. Philip T. RULE.
• Court: Maine Supreme Court

Page 445

376 A.2d 445

George H. REED, III, a minor, by Suzanne G. Reed Individually and as mother and next friend v. Philip T. RULE.

Supreme Judicial Court of Maine.

July 22, 1977.

Richard W. Elliott, Boothbay Harbor, for plaintiff.

Robert L. Hazard, Ronald D. Russell, Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, and GODFREY, JJ.

DELAHANTY, Justice.

The plaintiff, George Reed, III (Reed), brought this action to recover damages for personal injuries sustained when defendant Philip Rule's (Rule) automobile collided with a bicycle operated by Reed on Route 27 in Boothbay Harbor. At the time of the accident, Reed was 14 years old. Reed's mother, Suzanne Reed, is also a plaintiff. Her action was for recovery of expenses incurred in the treatment of her son and for property damage. At the close of the plaintiffs' case, the presiding Justice granted a motion for a directed verdict. From the judgment entered, the plaintiffs appeal. We sustain the appeal.

The parties agree that the sole issue on appeal is the sufficiency of evidence to raise a jury question.

Evaluation of the validity of a directed verdict mandates that we consider the evidence, including every justifiable inference therefrom, whenever reasonably possible, in the light most favorable to the plaintiffs as the parties against whom the verdict was directed. Lyman v. Bourque, Me.,374 A.2d 588 (1977); Moore v. Fenton, Me., 289 A.2d 698 (1972); Feely v. Norton, 149 Me. 119, 99 A.2d 285 (1953). Applying this standard, we find that the jury would have been warranted in finding the occurrence of the following events.

In the early afternoon of August 1, 1973, Rule collided with the minor plaintiff slightly south of the "T" intersection formed by Routes 27 and 96 in Boothbay Harbor. Route 27 runs in a north-south direction. Route 96 intersects it at a right angle from the east, while a shopping center borders it on the west. At the time of the accident, the access to the shopping center was located slightly north of the point at which Route 96 abuts Route 27.

As the defendant drove his automobile in a southerly direction along Route 27 toward the "T" intersection, he observed that the vehicle ahead of him was stopped near the center line. The directional light on this car indicated that the driver intended to make a left turn into the eastbound lane of Route 96. A second vehicle was stopped at the terminus of Route 96 in preparation for a right turn into the northbound lane of Route 27.

Reed, meanwhile, was riding his bicycle in the northbound lane of Route 27 toward the "T" intersection. In an effort to reduce his speed as he came down the hill toward the shopping center and intersection, Reed applied his handbrakes. Although the brakes had apparently functioned properly in the past, they failed on this occasion. The minor plaintiff later testified that he had observed both vehicles stopped in preparation for turns and that a collision with one of them was imminent unless he took evasive action. Accordingly he attempted to "dart" across Route 27 to the safety afforded by the shopping center parking lot. At that moment, Rule was passing on the right the vehicle preparing to enter the eastbound lane of Route 96. Defendant and plaintiff saw each other at approximately the same time. A collision ensued between the left front of Rule's automobile and the front wheel of Reed's bicycle. The record indicates that tiremarks extended from a point opposite the entrance to the shopping center to that point at which Rule's car stopped.

In Moore v. Fenton, Me., 289 A.2d 698 (1972), this Court cautioned trial courts to use sparingly their power to grant a directed verdict pursuant to M.R.Civ.P. 50(a). ¹ Specifically we said:

Only if the correctness of directing a verdict appears so clear to the presiding Justice that all reasonable doubts of possible error or uncertainty have been removed in his mind should he grant it. Moore v. Fenton, supra at 700 n.1.

Accord Lyman v. Bourque, supra; Brewer v. Roosevelt Motor Lodge, Me., 295 A.2d 647 (1972). The grant of a motion for a directed verdict should be the exception and not the rule. ² See Brewer v. Roosevelt Motor Lodge, supra at 650. Cure of an erroneous jury verdict by issuing a judgment n.o.v. is better than prevention of a verdict. ³ If the Law Court sustains the jury verdict on appeal, it may then reinstate that verdict and order judgment without resort to a second trial to obtain a verdict.

In the instant case, the plaintiffs had the burden to prove that the negligent action of the defendant was the proximate cause of the minor plaintiff's injuries in order to recover damages. Wing v. Morse, Me., 300 A.2d 491 (1973); Brewer v. Roosevelt Motor Lodge, supra. By granting the defendant's motion for a directed verdict, the trial Justice, in effect, concluded that the evidence was insufficient to present a question of fact for a jury. We disagree.

The defendant argues that he was not negligent as a matter of law because of his compliance with 29 M.R.S.A. § 1151. This statute governs the passing or overtaking of vehicles on the public highway and provides in part: ⁴

The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway. 29 M.R.S.A. § 1151(4) (emphasis added).

Specifically this provision raises the question of whether Rule passed the stationary vehicle on the right "under conditions permitting such movement in safety." Response to this query requires an answer to a preliminary question of whether Rule kept a proper lookout. The evidence indicates that the road was not unobstructed. In fact, the vehicle that the defendant attempted to pass provided some obstruction. Did Rule look as he passed that vehicle on the right? If he looked, should he have seen the minor plaintiff? We feel that the conduct of the defendant presented a sufficient question for the jury.

The defendant also asserts that he was entitled to assume that other users of the highway would obey the law until the contrary became or should, in the exercise of reasonable care, have become apparent. Hoch v. Doughty, Me., 224 A.2d 54 (1966); Goldstein v. Sklar, Me., 216 A.2d 298 (1966); Davis v. Simpson, 138 Me. 137, 23 A.2d 320 (1941). We agree that Rule as the person with the legal right of way could drive with some degree of faith in others' obedience to the law; however, the time at which the presence of Reed in the defendant's path became or should have become evident to Rule was a jury question. See Hoch v. Doughty, supra.

In addition to the nature and extent of the defendant's duty to observe other users of the road, the speed at which Rule passed the turning vehicle generates a jury question. Was that speed proper under the then existing circumstances? The evidence indicates that at the site of the accident the speed limit on Route # 27 was thirty-five miles per hour. Despite the existence of a posted speed limit such conditions as traffic, visibility, and weather may reduce the speed at which an individual exercising reasonable care may travel. Section 1252(1) of 29 M.R.S.A. specifically provides:

Any person driving a vehicle on a way or in any other place shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the way or place, and of any other conditions then existing.

At the time of the collision, the roads were "damp." After considering this factor along with other evidence of the road and weather conditions, the jury might have determined that defendant failed to operate his vehicle at a "careful and prudent speed," as required by 29 M.R.S.A....