Sturtevant v. Ouellette

• Citation: 140 A. 368
• Parties: STURTEVANT v. OUELLETTE.
• Decision Date: 07 February 1928
• Court: Supreme Judicial Court of Maine (US)

140 A. 368

STURTEVANT

v. OUELLETTE.

Supreme Judicial Court of Maine.

Feb. 7, 1928.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Edgar H. Sturtevant, administrator of the estate of Arthur H. Sturtevant, against Joseph E. Ouellette. Verdict was directed for defendant, and plaintiff brings exceptions. Exceptions sustained.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Gordon F. Gallert, of Waterville, and Frank T. Powers, of Lewiston, for plaintiff.

Robert A. Cony, of Augusta, for defendant.

STURGIS, J. The plaintiff's intestate, Arthur H. Sturtevant, while crossing Elm street in the city of Waterville on the evening of October 23, 1925, was struck by the defendant's automobile and died without conscious suffering. This action is brought to recover damages under R. S. c. 92, § 9.

The case is before this court on exceptions to the order of the presiding justice directing a verdict for the defendant. It is the duty of the court, therefore, simply to determine whether upon the evidence the jury could properly have found for the plaintiff. "If there was evidence which the jury were warranted in believing, and upon the basis of which honest and fair-minded men might reasonably have decided in favor of the plaintiffs * * * it is reversible error to take the issue from the jury." Johnson v. N. Y., N. H. & H. R. R., 111 Me. 263, 265, 88 A. 988, 989.

A careful examination of the evidence discloses these facts. Elm street in Waterville is a heavily traveled main thoroughfare about 50 feet wide at its intersection, with Western avenue coming in from the west. About 6 o'clock on the evening of October 23, 1925, the plaintiff's intestate came down Western avenue with one Alphonse Pelletier and stopped at the edge of the sidewalk in the northwest corner of the intersection. From this point his view up and down Elm street was practically unobstructed. The defendant was then driving up Elm street, approaching the intersection from the south. His view ahead in the street, including the sidewalk where the deceased stood, was likewise unobstructed. The plaintiff left the sidewalk and attempted to cross Elm street and was struck down by the defendant's automobile, dying without conscious suffering as a result of the collision. These facts are not in dispute.

There is a sharp conflict of testimony, however, upon the question of what actually took place. The companion of the deceased, Mr. Pelletier, was called by the plaintiff, and his account of the accident as stated upon the stand is that after standing at the sidewalk edge for a few moments the deceased started to walk across Elm street on the crosswalk while the witness turned down Elm street. He says that, attracted by the sound of the horn and glare of the headlights of the defendant's oncoming car, he shouted to the deceased, "Look out, a car coming!" and threw up his arm as a warning. He says the automobile was traveling at a speed of 30 miles an hour, and he places the deceased, when he gave the warning, as near the outer ear track, fixed by the engineer as about 13 feet east from the sidewalk where the men parted.

James Barnes, a medical student, came down Western avenue just behind Mr. Sturtevant and Mr. Pelletier. He testifies that the men parted at the edge of the sidewalk as described by Mr. Pelletier; the deceased started across Elm street, and on reaching the middle of the car track started to hurry; he says Mr. Sturtevant continued on to the middle of the street, "when it seemed as though the right front fender of the automobile hit him in the abdomen." This witness saw the accident. And while there is testimony impeaching the account of the accident given by Mr. Pelletier, this statement of the occurrence by Mr. Barnes, while contradicted by the defendant's witnesses, is unimpeached.

The witnesses for the defendant say that the deceased had been drinking some alcoholic beverage—the kind and amount, however, is not disclosed. They say that driving along Elm street on the car track in the middie of the street 150 feet away from Western avenue, the deceased was visible as he stood at the edge of the sidewalk, and when the car reached a point 10 to 25 feet from the deceased he suddenly, although restrained by his companion, pulled away and started to stagger with uplifted hands across the street, and, in spite of the defendant's swerving of his car to the left, ran into the right side of the automobile, breaking the windshield with his hand and tearing off the tire carried on the right running board as he fell backward. They assert that the defendant was driving slowly, but admit that the car, an open touring model, had its side curtains up along the entire right side, the side towards the sidewalk from which the plaintiff walked into the street.

These in brief are the facts in evidence. Is a finding of negligence based on this evidence clearly wrong? Is contributory negligence proved? Unless both these questions as a matter of law can be answered in the affirmative, the issue is one of fact and the case should be submitted to a jury.

Elm street, as already stated, is a main thoroughfare. There is evidence that the deceased was attempting to cross on an established crosswalk; that the defendant was driving his car 30 miles an hour on the car track in the middle of the street with side curtains up the length...