Rouse v. Scott

• Decision Date: 27 February 1933
• Court: Maine Supreme Court
• Parties: ROUSE v. SCOTT.

164 A. 872

ROUSE

v. SCOTT.

Supreme Judicial Court of Maine.

Feb. 27, 1933.

Motion and Exceptions from Superior Court, Aroostook County.

Action by William H. Rouse against Doris Scott. Defendant's motion for a directed verdict was denied, and she brings an exception and files a general motion for a new trial.

Motion sustained, and new trial granted.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.

A. S. Crawford, Jr., of Houlton, for plaintiff.

Bernard Archibald, of Houlton, for defendant.

STURGIS, Justice.

In this action on the case for negligence, the defendant reserved an exception to the denial of her motion for a directed verdict and filed a general motion for a new trial.

The evidence clearly shows that the defendant, on the evening of August 29, 1931, drove her Chevrolet roadster northerly on Court street in Houlton, slowed down or stopped nearly opposite Leonard street, which intersects from the west, and she was about to enter, then proceeded slowly across Court street, and had reached the gravel shoulder beyond the tarvia when her car was struck by the motorcycle which the plaintiff was driving southerly on the right-hand side of Court street. The car and motorcycle were badly damaged. The plaintiff was seriously injured.

In turning her car across Court street, the defendant passed, not to the right, but to the left of the intersection of the medial lines of the ways in violation of the Motor Vehicle Law. R. S. c. 29, § 74. This was prima facie evidence of her negligence. Bolduc v. Garcelon, 127 Me. 482, 144 A. 395. And while the failure of the defendant to observe the law of the road does not establish absolutely her liability, the presumption created is sufficient, nothing else appearing, to sustain the burden which was on the plaintiff to prove the defendant's negligence. Dansky V. Kotimaki, 125 Me. 72, 74, 130 A. 871.

It is not necessary, however, to consider the correctness of the finding of the jury on this issue. The plaintiff not only had the burden of establishing the negligence of the defendant, but also that he himself was free from negligence which was a contributing proximate cause of the collision. The controlling question here is whether he has proved his own due care.

Upon his own admissions, the plaintiff was driving his motorcycle at least twenty-five miles an hour when it struck the defendant's car, and this had been his speed for some little distance. When about sixty-six feet from the point of collision, he saw the defendant's car coming towards him on the opposite side of the street, but paid no particular attention to it further and did not notice it was swinging across the street until, as he expresses it, "we were right together." He says that he then had neither time nor opportunity to...