Savoy v. McLeod

• Decision Date: 05 November 1913
• Citation: 111 Me. 234,88 A. 721
• Parties: SAVOY v. McLEOD.
• Court: Maine Supreme Court

88 A. 721

111 Me. 234

SAVOY

v. McLEOD.

Supreme Judicial Court of Maine.

Nov. 5, 1913.

On Motion from Supreme Judicial Court, Penobscot County, at Law.

Action by Alice Savoy against James McLeod. Verdict for plaintiff. On motion for new trial by defendant. Motion overruled.

Argued before SAVAGE, C. J., and SPEAK, CORNISH, KING, BIRD, and PHILBROOK, JJ.

D. I. Gould and Edgar M. Simpson, both of Bangor, for plaintiff.

Fellows & Fellows, of Bangor, for defendant.

SPEAR, J. It Would be of little avail to analyze the testimony in this case on the question of liability. The report shows that there was ample room for the defendant to have guided his machine safely past the team in which the plaintiff was riding had he been paying proper attention to the rights of the team.

In view of the accidents and tragedies that are daily occurring in the operation of automobiles, the present case seems an available opportunity for a statement of the familiar rules of law with more definite application than has yet been announced in this state to the duty of persons who undertake to drive upon the public highways the engines of power and peril, now represented in the mechanism of the automobile. If not strictly a matter of judicial notice, it is a matter of common knowledge that death and injury are of daily occurrence due to the inefficiency, negligence, or reckless conduct of those who are permitted to engage in the operation of these powerful machines. A mania for speed seems to have seized the minds and dominated the action of many of the automobile operators, whether owners or chauffeurs. This class of drivers apparently assume that the foot passenger or team will, upon their approach, so hastily change its course as to relieve the operator from any diminution of speed that he may have his machine under control and avoid accident if the unexpected happens and the passenger or vehicle or child does not, as quickly as anticipated, obey the mandate of his whistle or horn.

It is also a matter of common knowledge that all adults of ordinary prudence do not always immediately do the right thing or exercise the best judgment in cases requiring quick thought and quick action. This failure of men to act alike, under like circumstances, is so general in its application that it must be regarded as a habit which all persons, coming in contact with human action, must be held to anticipate as an existing condition. In view of this habit, due to the inherent frailties of human nature, and the rule of law that the degree of diligence deemed in law sufficient to constitute due care is always commensurate with the danger to be avoided, it is the opinion of the court that the driver of an automobile in the public highways constantly traveled by pedestrians and teams and occupied by children of all ages should, to establish due care, exercise so high a degree of diligence in observing the rights of a foot passenger or team when approaching them as to enable him to control it or stop it if necessary to avoid a collision, which cannot be regarded as a pure accident or due to contributory negligence.

But it may be claimed that this rule of diligence renders the operation of automobiles impracticable. If so, let the business stop. They should be required to do everything that human agency can do to avoid taking human life. This court declared in Cameron v. Street Railway, 103 Me. 482, 70 Atl. 534, 18 L. R. A. (N. S.) 497, 125 Am. St. Rep. 315, that "the court should establish as the law the rule which prevents injury or loss of life rather than that which invites or even permits it. * * * This rule is based upon reason and good public policy." But the claim of impracticability is not well founded. Prudent drivers neither kill children nor injure men, except at very rare Intervals, and then only in cases of unavoidable accident or contributory negligence. But, whatever the result, these requirements are essential to an effective rule of safety and are in harmony with the rights of travelers upon the highway and of children in the streets, however they may come there.

But no new principles of law have been evolved for express application to the operation of automobiles. We have simply endeavored to apply the well-known principles of law in a specific way to this class of cases, as has been done in the cases of steam roads and electric cars. The foundation of every principle of law invoked is found in what might be regarded as a legal maxim (the very foundation of the rule underlying the doctrine of due care and negligence) that in all human action involving hazard the law imposes the duty of using such diligence as is commensurate with the danger to be avoided. This rule applies to the operation of steam railroads upon the ground of public policy and safety and finds expression in Libby v. Maine Central R. R. Co., 85 Me. 34, 26 Atl. 943, 20 L. R. A. 812, in this language: "The law requires common carriers of passengers to do all that human care, vigilance, and foresight can under the circumstances, considering the character and mode of conveyance, to prevent accident to passengers. To require anything less...