Skene v. Graham

• Decision Date: 14 December 1915
• Citation: Skene v. Graham, 114 Me. 229, 95 A. 950 (Me. 1915)
• Parties: SKENE v. GRAHAM et al.
• Court: Maine Supreme Court

95 A. 950

SKENE

v. GRAHAM et al.

Supreme Judicial Court of Maine.

Dec. 14, 1915.

On Motion and Exceptions from Supreme Judicial Court, Kennebec County, at Law.

Action by John R. Graham and others against James W. Skene. Judgment for plaintiff, and defendants move for new trial and except to certain rulings on instructions. New trial granted.

Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ.

Williamson, Burleigh & McLean, of Augusta, for plaintiff. Ryder & Simpson, of Bangor, for defendants.

HANSON, J. This is an action on the case to recover damages for personal injuries sustained by the plaintiff in a collision between the plaintiffs and defendants' automobiles. The jury returned a verdict for the plaintiff for $2,175.

The case is before the court on the defendants' general motion for a new trial, and exceptions to the refusal of the presiding justice to direct a verdict for the defendants, and refusal to give certain requested instructions.

The collision occurred at the corner of Western avenue and Sewall street in Augusta, on August 26, 1913. The plaintiff was driving a Ford car easterly on Western avenue, while the defendants were traveling westerly in a Packard car on the same street. The plaintiff was driving his own car, the defendants' car being in charge of a chauffeur. The southerly side of Western avenue was closed to traffic from a point 100 feet from its junction with Sewall street, but the northerly side of the street was open and in use by the public on the day in question, and there was sufficient room for automobiles and other vehicles to pass and repass; the width of that side of the street being 24 feet. The plaintiff left his garage with the intention of going to Manchester, and had passed up Western avenue some 275 feet when he decided to return to the garage. His counsel questioned him as follows:

"Q. Describe your course back.

"A. I went right straight down the north side of the street until I got down to where I could go across the track. There was lumber and horses piled up there, so you could not get past, and so I went down and crossed the track and then proceeded on the right-hand side, extreme right-hand side of the street, down to Sewall street.

"Q. And where was the Packard car when you first noticed it?

"A. It was on Western avenue, on the right-hand side of the street, which would be the northerly side, coming up the avenue.

"Q. That would be its proper side?

"A. Yes; its proper side.

"Q. Will you describe the collision; first, will you tell us where the collision took place?

"A. Right on the corner of Western avenue and Sewall street, on left or south side of Sewall street, at the junction of Sewall street and Western avenue.

"Q. On which corner of Sewall street was it, east or west?

"A. Very nearly the middle of the street.

"Q. Will you describe the accident fully?

"A. Well, I was going along on my right-hand side of the street, and this big Packard car came tearing up Western avenue, and when it came nearly opposite to me, all at once it swung right around, and crossed the track and struck my car."

The plaintiff claims that the defendants' car was driven out of its course, and from its lawful position on the northerly side of Western avenue, across said avenue and into collision with his car, which was, and had been for some distance, proceeding on the (his) extreme right-hand side of said avenue; that he was in the exercise of due care, traveling 10 or 12 miles an hour, while the defendant was driving 40 miles an hour. This condition, if true, would constitute culpable negligence on the part of the defendants.

But the defendants, in support of their motion for a new trial, contend that the evidence did not authorize the jury to find for the plaintiff, that the collision was the result of the plaintiff's own carelessness, and that any damage resulting therefrom was due to his fault and want of due care.

Harry A. Haas, who was driving the defendants' car, testified:

"Q. You started from Bangor?

"A. Yes, sir.

"Q. When you got to Augusta, what course did you take?

"A. Well, I came up State street and up Western avenue; and at Western avenue and Sewall street the accident happened.

"Q. Won't you state in your own words just what happened after you left State street, on your way up Western avenue, up to the time of the collision?

"A. Well, I was going up Western avenue close to the gutter, on my right-hand side, on the north side of Western avenue, and I was going about 15 miles an hour; and I saw Mr. Skene's Ford automobile stop close to the curb on the other side at a house, and when I got about halfway up, he started, running close to the curb in my direction. I proceeded along Western avenue, and when we got close to Sewall street, he had not turned out; and if we had kept that same course, we would have run into each other head on. And so when we got to Sewall street, I swung out, and he swung out at the same time, and I turned around and stopped the machine, and he came there and caught me.

"Q. At the time of the collision, the Packard car was stopped?

"A. Stopped; yes, sir.

"Q. And how fast should you say the Ford machine was going when he struck you?

"A. Eight or 10 miles an hour.

"Q. But the turning, what about the turning?

"A. Both turned practically the same time. I was turning to get out of his way, to pass him, and he turned at the same time. I could not turn back, because I would run into him head on; and I ran over and stopped, and he ran into me."

The defendants corroborate Mr. Haas in all important particulars, and he is corroborated by the plaintiff's witness Brown, the only witness introduced by the plaintiff who saw the collision, upon the most vital point in the case.

Mr. Brown testified as follows:

"Q. Will you describe what took place, the course of that Ford car before the accident?

"A. Well, before the accident, I was coming up Sewall street, going to Western avenue, and Mr. Skene, he was up Western avenue, coming clear up from somewhere, and he went up into a yard, and 1...