Sanborn v. Stone

• Citation: 149 Me. 429,103 A.2d 101
• Parties: SANBORN v. STONE.
• Decision Date: 27 January 1954
• Court: Supreme Judicial Court of Maine (US)

Page 101

103 A.2d 101

149 Me. 429

SANBORN v. STONE.

Supreme Judicial Court of Maine.

Jan. 27, 1954.

James H. McCann, Clinton T. Goudy, Portland, for plaintiff.

Robinson, Richardson & Leddy, Portland, for defendant.

Before MERRILL, C. J., and THAXTER, FELLOWS, and WILLIAMSON, JJ.

FELLOWS, Justice.

This is an action for negligence wherein the jury in the Cumberland County Superior Court rendered a verdict for the plaintiff in the sum of $16,000. The case comes to the Law Court on the defendant's general motion for a new trial, except that no claim is made that damages are excessive.

The testimony is conflicting, but the principal facts that the jury could find from the record are briefly these: On February 6, 1952, at about 5:30 in the afternoon, an automobile owned and operated by Charles L. Stone, the defendant, struck and severely injured Earl D. Sanborn, the plaintiff, then engaged in shoveling slush and snow at the entrance of his own driveway at 1468 Washington Avenue in Portland. It was necessary for the plaintiff to shovel so that the water running in the street and along the ditch would continue past his driveway and not freeze in it. If the water froze in the driveway it was very difficult to drive in with an automobile without getting a start from across the street.

The plaintiff was a mechanic, 49 years of age, whose home had been here on the westerly side of Washington Avenue for more than a dozen years. He arrived home from work about 5:10 P.M. on this day. Washington Avenue, in front of the plaintiff's house and driveway, is black macadam. The street runs northerly and southerly, and the macadam is 36 feet, 6 inches wide, with the surface crowned in the center for drainage. There is a clear and unobstructed view for 1,200 feet in a northerly direction and for 800 feet in a southerly direction. The grade is southerly and very slight. This section of the city is a built-up portion and residential.

On the westerly side of the street, northerly and southerly of the plaintiff's driveway, snow had been pushed aside or piled by the city plows. This plowing had caused a margin of snow 4 or 5 feet out from the westerly edge of the highway and 5 or 6 inches deep, although witnesses disagree as to width and depth. Outside of the snow, and on the edge of it, a stream of water 2 feet wide was flowing southerly. Some water was coming into the driveway. The traffic was using the bare part of the way between snow bank and water on the western side, and the bare eastern side of the way--approximately 29 feet wide.

The plaintiff says he was shoveling at a point 2 feet from the westerly line of Washington Avenue and 2 feet shoutherly from the northerly line of his driveway. He looked southerly and saw the lights of an approaching car, which was a car of one Graffam. Then looking northerly the plaintiff saw the lights of an automobile over 200 feet distant (which was afterwards determined as the defendant's), and this car the plaintiff says was then traveling near the center of the highway.

The plaintiff was shoveling snow and slush out of the entrance of his driveway and near the edge of the highway and under a street light. The traffic was using the portion of road that was free of snow. The defendant coming from behind him, according to the plaintiff, must have swerved toward him into the snow and struck him. There was no warning given by the defendant driver. The plaintiff heard the defendant's automobile hit the snow behind him, but he did not have time to straighten up. After striking the plaintiff, the defendant swerved to the left, went about 70 feet, and struck the approaching Graffam car, forcing the plaintiff further along with him before he stopped his car.

The defendant, who was 74 years old and who has been a physician for 50 years, told the police that 'he was driving south on Washington Avenue and he was blinded by the lights of an on-coming car and he hit a man and another car.' The defendant could not remember that he so told the police. The defendant's signed report said 'car coming toward me with bright lights.' The defendant testified that he saw 'something in the road ahead but could not determine what it was' and after this he saw that there was a man 10 or 15 feet away, but he did not attempt to stop until he hit the man and crashed into the side of the other car. He says he swerved and tried to avoid, instead of trying to stop.

The testimony describing the exact point where, and the manner how, the plaintiff was standing with relation to the side of the road, and how and where, and at what speed the defendant was proceeding with relation to the snow and water on the westerly side of the way, and whether the defendant's car swerved to right and then left, was conflicting, as is usual in automobile cases. The measurements of the engineer tend to show that, from the point where plaintiff was hit to the point where the defendant stopped his car, was 182 feet in a direct line. The testimony shows that the plaintiff was carried along by and with the defendant's car 90 feet after the defendant's car hit him, and that the defendant's car after it dropped the injured plaintiff at the side of the road, went 92 feet further before it stopped. The defendant claimed that the plaintiff was out in the dry portion of the road 'leaning somewhat forward as if in the act of stooping,' and that he, the defendant, was driving in the dry part of the way at the statutory speed of 25 miles an hour. The defendant said 'I could see him from his knees up', which might indicate to the jury that the plaintiff was in the snow as the plaintiff testified. The plaintiff said he was only 2 feet out from the edge of the highway in the strip of snow, or snow bank, where no traffic had been proceeding.

The defendant claims no negligence on his part, and that the plaintiff's negligence was the cause, or contributing cause of the accident. The damages were severe but no question is raised as to the amount being excessive.

The defendant 'estimates' he was traveling at a speed of 25 miles per hour, but from what happened, and the distance traveled before stopping, together with the testimony of other witnesses that the car 'zipped by' and was going 'very fast,' the jury would be justified in finding that the speed was greater. If he was going at a speed of 25 miles, as he says, was it excessive under the circumstances, should he have seen the plaintiff sooner, should he have stopped if blinded, and did he have his car under proper control when he saw 'something' ahead and did not then know what it was?

As to the plaintiff's care, it depends on where the plaintiff was and what he was doing at the time. Was he in the exercise of ordinary care at the time and under the circumstances? Was he where he testified that he was, at the entrance of his driveway and about 2 feet from the westerly edge of the highway, and was this negligence, or was he on the dry part of the macadam near the center of the way which traffic was then using, as the defendant says?

The evidence here is to be viewed in the light most favorable to the plaintiff. Daughraty v. Tebbets, 122 Me. 397, 120 A. 354, 34 A.L.R. 1507, and general rule is that when the testimony is conflicting the verdict will stand. Moulton v. Sanford & Cape Porpoise Railway Co., 99 Me. 508, 509, 59 A. 1023; Spang v. Cote, 144 Me. 338, 343, 68 A.2d 823; Gosselin v. Collins, 147 Me. 432, 87 A.2d 883.

Where no exceptions are taken to the charge of the presiding Justice, it is presumed that the charge correctly presented to the jury the applicable propositions of law. Barlow v. Lowery, 143 Me. 214, 219, 59 A.2d 702.

The burden which the proponent of a motion to overturn a verdict assumes, has been long and often declared. In determining the issue the Law Court must proceed upon the theory that the jury had a right to accept the testimony of the plaintiff's side as true, and to reject all the testimony of the defendant's side as untrue, mistaken, or unsatisfactory, unless the testimony, including the circumstances and probabilities, reveals a situation that proves the testimony on the plaintiff's side to be inherently wrong. Daughraty v. Tebbets, 122 Me. 397, 398, 120 A. 354, 34 A.L.R. 1507; Eaton v. Marcelle, 139 Me. 256, 29 A.2d 162; Huntoon v. Wiley, 142 Me. 262, 49 A.2d 910.

A general motion for a new trial is based on the proposition that injustice will plainly be done if the verdict is allowed to stand. It is a motion that asks that the verdict be set aside because it is against the evidence, and the weight of evidence, and that it is against the law, and that the damages are excessive (no excess of damages is claimed here). Under our system, if a jury hears and determines disputed facts, that determination is final, unless so clearly wrong that it is apparent that the verdict was the result of prejudice, bias, passion, or a mistake of law or fact. The Court cannot, and does not, pass upon credibility or number of witnesses. If the evidence in support is substantial, reasonable, coherent, and consistent with circumstances and probabilities, the verdict should stand. The values of conflicting bits of testimony are for the jury, and the burden of showing, to the satisfaction of the Court that the verdict is manifestly wrong, is upon the one seeking to set it aside. McCully v. Bessey, 142 Me. 209, 212, 49 A.2d 230; Kennebec Towage Co. v. State of Maine, 142 Me. 327, 52 A.2d 166.

Violation of law, if proven by the evidence, is sometimes prima facie evidence of negligence, and as otherwise expressed, raises a presumption of negligence. While not conclusive, the defendant must overcome the presumption against him. Rouse v. Scott, 132 Me. 22, 164 A. 872; Nadeau v. Perkins, 135 Me. 215, 216, 193 A. 877.

One may assume at all events, until the contrary appears, that approaching automobile will be driven carefully. The plaintiff is not bound to anticipate negligence on...