Spang v. Cote

• Decision Date: 18 October 1949
• Citation: 68 A.2d 823
• Parties: SPANG v. COTE et al.
• Court: Maine Supreme Court

68 A.2d 823

SPANG

v.COTE et al.

Supreme Judicial Court of Maine.

Oct. 18, 1949.

Action by Philip J. Spang, Jr., against Robert Cote and another for damages sustained when plaintiff's automobile collided at night with unlighted rear end of named defendant's trailer.

Trial in Superior Court for York County resulted in a verdict for plaintiff and defendants moved for new trial.

The Supreme Judicial Court at Law, Fellows, J., held that the verdict was manifestly wrong in view of plaintiff's contributory negligence and granted a new trial.

Robert A. Wilson, Portland, I. Edward Cohen, Portland, for plaintiff.

John M. Curley, Portland, for defendant, Robert Cote.

Verrill, Dana, Walker, Philbrick & Whitehouse, Leon V. Walker, and Leon V. Walker, Jr., Portland, for defendant, Louis Daigle.

Before MURCHIE, C. J., and FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

This case is before the Law Court on general motion for new trial filed by each of two defendants after jury verdict for the plaintiff in Superior Court for York County.

This is an action for negligence and, while the witnesses differ in some details, the principal facts appear to be as follows: On August 20, 1948 at about 8:30 p. m., the plaintiff, Philip Spang, Jr., was driving a Ford sedan in an easterly direction on ‘Guinea Road’ in Biddeford. The defendant, Robert Cote, in a Farmall Tractor with trailer loaded with hay, was ahead of the plaintiff and headed in the same easterly direction as was the plaintiff, but Cote had stopped or parked, because of tire difficulty, on the right-hand side of the tar surface. The defendant Cote did not attempt to drive off the road into a driveway, or on to the shoulder of the road. The Cote tractor and trailer of hay were not disabled but a trailer tire was rubbing. The defendant, Louis Daigle, in a Chevrolet sedan that was headed in a westerly, or opposite direction, had come along the highway and had stopped to speak to the defendant Cote, who was on the tractor.

The official hour of sunset on this day was stipulated to be 7:37 p. m. The collision was about an hour later. There were no lights or reflectors on the rear of the load of hay. Exactly where the defendant Daigle was with his Chevrolet at the instant of collision, is in dispute. In any event, Daigle, with his lights on and facing toward the on-coming plaintiff, had stopped to talk with Cote and had been blocking the road just prior to the collision of the plaintiff's car with the trailer of hay.

The plaintiff Spang, going easterly toward the load of hay at a speed, as he says, of forty miles an hour, claims that he saw the lights of the Daigle car when about 800 feet away and thought that they were on a vehicle approaching him and intending to meet and pass him. The plaintiff saw no hay load. Plaintiff Spang says he dimmed the lights of his car and, when he found that the Daigle car (approaching him as he thought) did not respond by dimming, he put his lights on bright and dimmed them again. Spang says he was not then sure that this Daigle car was moving and approaching him, so he says he reduced his speed. Spang says that he was not ‘blinded’ by the Daigle car's lights, but his vision was ‘reduced’ thereby. He testified that he continued on and, when he thought he was about to pass the Daigle Chevrolet, suddenly saw the rear of the load of hay directly in his path and twenty-five feet away. At the time he saw the hay the plaintiff says he was driving ‘probably thirty miles an hour; maybe between twenty-five or thirty. I wouldn't really know.’ The plaintiff was, therefore, travelling about 40 feet a second, on his own estimate. Witnesses who saw the accident estimate the speed much greater, and state that the plaintiff did not reduce his speed.

The impact of the plaintiff's Ford pushed the parked tractor and trailer, which weighed five or six tons, more than ten feet. Large heavy posts, tongue bolt, trailer bracket, and other parts of the trailer and tractor were broken. The plaintiff said his car was ‘just junk’ and worth $15 after the collision. It was stated, without contradiction, that the seat cushion of the rear seat of the plaintiff's car was thrown to the front and on top of the plaintiff's head, so that the cushion had to be removed before the plaintiff could be extricated from the front seat by bystanders.

The plaintiff testified that he could not have gone on the left side of the hay had he seen the hay, because it seemed to him that the road on his left was blocked by the Daigle car. The defendant Daigle and all the witnesses deny this, and say that Daigle had slowed up, or stopped for an instant to speak to defendant Cote, and that he (Daigle) was not beside the tractor and the hay. He moved ahead out of the road on to the adjoining lawn or driveway to permit the plaintiff's car that he saw fast approaching him to pass the load of hay. The defendant Daigle further testified that the plaintiff did not reduce his speed; that he got out of his car and tried to stop the plaintiff, and that the plaintiff passed by him without reducing speed while the Daigle car was off the road.

There was an electric street light on a pole near the road and over the point where the load of hay was stopped. Three rural mail boxes on a post were beside the pole, and the defendant Cote testified that his hay touched the boxes. One witness said that the load of hay was ‘under the light’. The same witness also said there was room for a car to pass between the load of hay and the Daigle car. Another witness stated that at the time of the accident the Daigle car was not wholly off the tarred surface because the front left wheel of the Daigle car was ‘six to ten inches' on the tar.

We have, therefore, this picture: The plaintiff was approaching the rear of defendant Cote's load of hay, which load was then stopped on the right-hand side of the highway. Facing the plaintiff and by the side of the Cote tractor and trailer of hay, and blocking plaintiff's left side of the road (as the plaintiff says), or not blocking and off the road (as defendants and the other witnesses say), was the car of defendant Daigle with its lights shining toward the on-coming plaintiff. The plaintiff says that he did not see the hay load until it was too late to avoid hitting it, because his vision was ‘reduced’ by the lights.

Four witnesses testified as to visibility of the load of hay, although what others saw is not material. The question is: Should the plaintiff have seen, and should the plaintiff have stopped or otherwise avoided the load of hay, or did some negligence on his part contribute to his injury? Had the jury the right to say, under the evidence, that the plaintiff was exercising proper care while either or both of the two defendants were negligent? Or was the verdict clearly wrong, as claimed by the motions of the defendants?

Every witness, except the plaintiff, testified that Daigle moved off the highway when the plaintiff was a long distance away. The plaintiff himself stated that the Daigle car did not move while he (the plaintiff) was travelling the last 300 or 400 feet. The plaintiff's first impression, when he was 800 feet away, he says, was that the Daigle car was ‘approaching.’ The plaintiff says he dimmed his lights and Daigle did not. The plaintiff says he fully realized that Daigle was not moving when plaintiff was 300 or 400 feet distant. The plaintiff, therefore, on his own testimony, knew that Daigle was stopped, and that his own vision was ‘reduced.’ He did not see what was the reason for the unusual action of the Daigle car, if it was unusual, or what was ahead in his own path as he was about to pass the Daigle car. He says he did not see the hay load until 25 feet away from it, although his lights were in ‘good condition.’ At the speed he was then travelling, ‘probably thirty miles an hour; maybe between twenty-five or thirty miles. I wouldn't really know,’ he was not able to control his car to avoid the collision with it.

The estimate of speed made by the plaintiff cannot be other than erroneous when the physical effects of the crash are taken into consideration. Esponette v. Wiseman, 130 Me. 297, 155 A. 650. There is also a tendency for drivers of automobiles to have their cars going much more slowly, on the court room witness stand, than they actually travel upon the highway.

It is the duty of an automobile driver to stop his car when for any reason he cannot see where he is going. Haskell v. Herbert, 142 Me. 133, 48 A.2d 637; House v. Ryder, 129 Me. 135, 150 A. 487; Cole v. Wilson, 127 Me. 316, 143 A. 178; Day v. Cunningham, 125 Me. 328, 133 A. 855, 47 A.L.R. 1229.

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