Shea v. Hern

• Citation: 171 A. 248
• Parties: SHEA v. HERN, and four other cases.
• Decision Date: 02 February 1934
• Court: Supreme Judicial Court of Maine (US)

171 A. 248

SHEA

v. HERN, and four other cases.

Supreme Judicial Court of Maine.

Feb. 2, 1934.

On Motion and Exceptions from Superior Court, Cumberland County.

Action by Harold Shea, by Charles W. Gilliam, by Doris E. Gilliam, by Frances H. Thompson, and by Merle L. Thompson, against J. Girard Hern. The cases were tried together, and verdict was rendered for plaintiff in each case, and defendant brings exceptions, and moves for new trial.

Exceptions overruled, motions overruled.

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

E. W. Bridgham, of Bath, and Ellis L. Aldrich, of Brunswick, for plaintiff.

William B. Mahoney, of Portland, for defendant.

THAXTER, Justice.

These five cases were tried together before a jury, which rendered a verdict for the plaintiff in each case. They are now before this court on the defendant's exceptions and general motions for new trials.

The plaintiffs, Harold Shea, Doris E. Gilliam, and Frances H. Thompson, sue for personal injuries J. Girard Hern, the operator of an automobile in which they were passengers. Charles W. Gilliam, the father of Doris, seeks to recover for medical expenses, incurred in the care of his daughter, and compensation for the loss of her services. Merle L. Thompson claims damages for loss of consortium of his wife, Frances, and for expenses in attempting to cure her of her injuries. Except in the case of Miss Gilliam, the injuries suffered were serious and the damages assessed large, but the sole issue before us is the liability of the defendant.

Hern owned a Peerless roadster, which he was driving just after midnight of August 11, 1932, over the bridge between Bailey's Island and Orr's Island. He was proceeding in a northerly direction toward Orr's Island. Seated beside him was Miss Gilliam, next to her was Shea, and Mrs. Thompson sat on Shea's lap. The bridge is approximately a quarter of a mile long, and slopes gradually downward from the center toward each end. There is a slight curve to the right in the bridge at the north end, and, as traffic leaves it here to continue over Orr's Island, the road bends first to the right and then to the left. The plaintiffs, as well as the defendant, were fully acquainted with the road, and in fact had driven over it several times on the night of the accident.

It seems to be conceded that the defendant drove his car over the southerly part of the bridge in a careful manner, and that as he approached Orr's Island he increased his speed. Mrs. Thompson and Miss Gilliam say slightly. Shea and two pedestrians who were on the north end of the bridge testify that as the car left the bridge it was going between forty and fifty miles an hour. The defendant himself states that his speed was much less than that, and he is corroborated by another witness who was near at hand. The defendant made the first bend to the right, but in attempting to turn to the left, at a point about 300 feet from the bridge, the car went off the road; the right wheels traveled about 45 feet through the grass; and it was finally stopped, when it struck with great force a pole, which was a little over 2 feet on the right of the traveled part of the highway.

The Exceptions.

The defendant's first exception is to the refusal of the presiding justice to direct a verdict for him. The motions raise the same question, and it is accordingly unnecessary to discuss this exception.

The second exception is to the refusal to give an instruction requested by defendant's counsel on the duty of a gratuitous passenger. The exception is not argued, and it is perhaps sufficient to say that the law is correctly stated in the charge, which includes an important qualification not present in the requested instruction.

Exceptions 3, 4, and 5 are not seriously pressed. They are to the refusal to give certain instructions, and to the charge as given relative to the evidence necessary to rebut the presumption of negligence arising from the fact that the automobile went off the road. The defendant contends that any explanation offered is a sufficient rebuttal. The presiding justice was correct in ruling that the explanation must be a reasonable one with as much probative force as the inference itself. Edwards v. Cumberland County Power & Light Co., 128 Me. 207, 146 A. 700; Humphrey v. Twin State Gas & Electric Co., 100 Vt 414, 139 A. 440, 56 A. L. R. 1011.

The sixth exception is to that part of the charge wherein the presiding justice discusses the doctrine of res ipsa loquitur. The use of this presumption has been fully discussed by this court Chaisson v. Williams, 130 Me. 341, 156 A. 154. It was there carefully pointed out that the mere fact of the happening of an accident is not evidence of negligence, but that the character of the accident may be such as to impose on the defendant the burden of an explanation. The court said at page 346 of 130 Me., 156 A. 154, 157: "Where an automobile, and the operation thereof, are exclusively within the control of the defendant, whose guest is injured, and it is not reasonably in the power of such guest to prove the cause of the accident, which is one not commonly incident, according to everyday experience, to the operation of an automobile, the occurrence itself, although unexplained is prima facie evidence of negligence on the part of the defendant. Res ipsa loquitur—the thing speaks for itself. The question of the defendant's negligence arises; is a matter of law."

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