Ross v. Russell .
| Decision Date | 13 July 1946 |
| Citation | 48 A.2d 403 |
| Parties | ROSS v. RUSSELL (two cases). |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Cumberland County.
Two actions, one by Jean Ross, a minor child, by Allen Ross, her father, as next friend against Carll Russell, to recover for personal injuries; the other brought by Allen Ross against the same defendant to recover for medical expenses. To review a judgment directing a verdict for the defendant at the close of the evidence, plaintiffs bring exceptions.
Exceptions sustained.
Wilfred A. Hay, of Portland, for plaintiff.
Robinson, Richardson & Leddy, of Portland, for defendant.
Before STURGIS, C. J., and THAXTER, HUDSON, MURCHIE, TOMPKINS, and FELLOWS, JJ.
We are concerned here with two actions, one by a minor child of the age of eight years brought by her father as next friend to recover for personal injuries, the other brought by the father to recover for medical expenses. In each case at the close of the evidence the presiding justice on the defendant's motion directed a verdict for the defendant. The cases are now before us on exceptions to these rulings.
The only question before us is whether, giving to each plaintiff the most favorable view of the facts and of every justifiable inference to be drawn therefrom, the jury might have been warranted in finding for the plaintiff. If so, the ruling below was error. Collins v. Wellman, 129 Me. 263, 151 A. 422; Drummond v. Pillsbury, 130 Me. 406, 156 A. 806. The jury could have found the following facts:
The minor plaintiff of the age of eight years was proceeding of foot with her brother of the age of nine and a half years on the sidewalk of Stanford Street in South Portland, which runs approximately north and south and intersects Broadway which runs from the shipyard in a westerly direction to Sawyer Street. Both streets at this point are nearly level, and Broadway is straight at least as far as Sawyer Street, which is slightly more than four hundred feet away. It was also possible to see a considerable distance beyond Stanford Street in an easterly direction. The children were proceeding southerly on Stanford Street preparing to cross Broadway to the southerly side. It was shortly after there o'clock in the afternoon of November 23, 1943, admittedly a misty, wet day, and the road was slippery. Broadway is a hard surfaced street capable of carrying four lanes of traffic, two moving west and two east. Workmen were leaving the shipyard and there was very heavy traffic on the northerly half of Broadway. At the time of the accident this traffic, composed of two lanes headed west, was halted by a traffic policeman at Sawyer Street. The cars were almost bumper to bumper and extended easterly beyond Santford Street. The defendant, driving his automobile easterly on Broadway, was headed for the shipyard where he was employed, and was travelling on the southerly side of the road in the lane nearest the middle. In fact the testimony shows that he was only from two or three feet from the line of cars headed in the opposite direction. His view northerly on Stanford Street was obstructed so that he was unable to see pedestrians about to cross Broadway at that point. At the time of the accident he was travelling, according to his testimony and the testimony of two others who were in the car with him, at from ten to fifteen miles an hour and he said he stopped within a foot. According to the occupant of one of the waiting cars headed in the other direction who saw the accident, he speed was far in excess of that, between thirty and thirty-five miles per hour, and the bill of exceptions concedes that the plaintiff's evidence tends to show such a rate of speed. The little girl stepped between two cars which were stopped in the northerly side of the street in the lane of traffic nearest the middle, took two or three steps southerly of the middle line of the road, and, apparently seeing the defendant's car coming, tried to get back into a position of safety near the waiting line of cars. She was too late and was struck apparently by the left fender of the defendant's car. He did not even see her. He testified that he was conscious of a bump or what he called a ‘flash.’ Robert D. LaLanne, who seems to be the only person who actually saw all that happened, testified that the little girl passed through the line of stalled traffic one car ahead of him, took two or three steps into the other side of the highway and then tried to get back, was rolled by the defendant's car over the road alongside of the car of the witness and stopped about two and a half car lengths in back of him, a distance of forty or forty-five feet from where she was hit.
It seems to be conceded that there was sufficient evidence of the defendant's negligence to go to the jury. The...
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