Tibbetts v. Dunton

• Decision Date: 21 August 1934
• Parties: TIBBETTS v. DUNTON.
• Court: Maine Supreme Court

174 A. 453

TIBBETTS

v. DUNTON.

Supreme Judicial Court of Maine.

Aug. 21, 1934.

On Motion from Superior Court, Penobscot County.

Action on the case by Charles L, Tibbetts against Orrin W. Dunton. Verdict for plaintiff, and defendant moves to set aside verdict.

Motion sustained.

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

B. W. Blanchard, of Bangor, for plaintiff.

Arthur L. Thayer, of Bangor, for defendant.

HUDSON, Justice.

Action on the case for negligence to recover for personal injuries and property damages resulting from an automobile accident occurring in the town of Hampden late in the afternoon of October 29, 1933, on state road No. 138. The defendant seeks by motion to overturn the jury's verdict for the plaintiff.

The road at the place of collision nearly in front of the driveway into the residence of Lyndon Dunton was 22 feet in width, with 18 feet of tarvia and 2 feet of gravel on each side of the tarvia. It was generally level and straight, with possibility of vision in either direction of approximately one-quarter of a mile. Next to the 2 feet of gravel on the right, as one went from Hampden westerly toward Augusta on this road, there was a ditch, and the descent from the gravel shoulder to the ditch was quite abrupt.

On this day the plaintiff, accompanied by the young lady whom he has since married, was driving easterly on this road on his way to Newburgh. He had been working for Lyndon Dunton, and, desiring to see him on a matter of business, stopped his car nearly opposite to Lyndon's driveway, which was on his left. As he stopped, he pulled his car well to the right of the road. Lyndon Dunton came to the automobile, noticed that the left rear tire was flat, and so informed the plaintiff. The plaintiff put on his lights, rear and front, and, with the assistance of Lyndon Dunton, upon his return from his house where he went to get a wrench, changed the tire for a spare; the now Mrs. Tibbetts remaining in the car.

There was a conflict of testimony as to the exact location of the Tibbetts car while the tire was being changed. The plaintiff claimed that the right wheels were out on the gravel practically to the ditch. The defendant contended that the left wheels were quite close to the center of the tarvia. It is reasonable to believe from the verdict that the jury sustained the plaintiff's contention, the effect of which would be that on the left of the plaintiff's car there was a clearance for passing traffic of some 14 or 15 feet.

Prom the time the plaintiff arrived until the accident there elapsed from twenty to thirty minutes, during which time some cars passed safely by. Finally along came the defendant with one passenger. If not then dark, it was very dusky. The defendant's lights were on. Although the defendant testified that he saw the tail-light of the plaintiff's car, he said he did not see the car itself until he was from within 20 to 24 feet of it, too late to do anything except to try to pass out around it. He did not see the plaintiff then kneeling at his left rear wheel as he was then tightening the last bolt in it. Not only did he not clear the plaintiff there kneeling in the highway, but he ran into his automobile, striking with his right mudguard the plaintiff's tail-light and left mudguard.

Justification for the verdict of the jury can be had only if the evidence proves sufficiently negligence upon the part of the defendant as the proximate cause of the injuries and lack of contributory negligence upon the part of the plaintiff himself. Unless manifestly wrong, the verdict must stand.

In our judgment, there was ample evidence on which to find negligence upon the part of the defendant, and his counsel, rather than relying much on that branch of the case, insisted much more upon the defense of contributory negligence.

In the first place, the defendant claimed that the plaintiff was guilty of violation of section 75 of chapter 29, Rev. St. 1930, which provides that: "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any way, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such way. * * *" The defense says that it was practicable to change this tire in the driveway above referred to, as well as practicable to have driven his car on a distance of some 300 feet to an opening on the right of the road where gravel had been taken out of a bank and there change the tire. It insists that failure to do this was contributory negligence. The plaintiff, on the other hand, says that this statute is inapplicable.

This statute is not necessarily applicable. Its applicability depends upon the finding of fact as to the exigency of the occasion. It is not claimed that the plaintiff left his vehicle but parked it in violation of this statute. Did he park it within the meaning of this statute? If so, the violation is prima facie evidence of negligence; otherwise, not. Dansky v. Kotimaki, 125 Me. 72, 74, 130 A. 871; Kimball v. Davis, 117 Me. 187, 103 A. 154; Rouse v. Scott, 132 Me. 22, 23, 164 A. 872.

In Elliott v. Seattle Chain & Manufacturing Co., 141 Wash. 157, 251 P. 117,118, there was an ordinance forbidding the parking of automobiles which, it was claimed, the driver violated. The court said:

"The ordinance prohibiting parking on Madison street did not contemplate a situation where, by the exigencies of the occasion, a person must temporarily stop his car on that street."

In that case the driver stopped on a steep grade because he was out of gas, and while away to get it the accident occurred.

In Dare v. Boss et al., 111 Or. 190, 224 P. 646, 648, the question arose whether there was a violation of a parking statute forbidding the parking upon main-traveled portions of highways. The court said:

"We find no definition in the statute of the word 'park,' but we take it that it means something more than a mere temporary or momentary stoppage on the road for a necessary purpose."

In Bruening v. Miller et al., 57 S. D. 58, 230 N. W. 754, 758, a tractor ran out of gas on the road and stopped. The operator left it to obtain gas. With relation to a statute against parking, the court said:

"Leaving the rig upon the highway under these circumstances was not 'parking' it in the sense in which that word is properly used."

It quoted Blashfield's Encyclopedia of Automobile Law, vol. 1, p. 656, § 4, as follows:

"The exigencies of automobile traffic make constant demands upon operators of motor vehicles to stop their cars either on the highway or at the side of the road to make repairs, and a driver or owner of such vehicle has a right to stop his machine in the highway for the purpose of making repairs, adjusting the machinery of his car, or to do whatever is necessary to be done about the car to increase its service for the purpose of travel."

The court also stated:

"If respondent had the right to stop his tractor to do whatever was necessary for the purpose of travel, he had the right to leave the rig on the highway a reasonable time for that purpose."

"The term 'parking,' as applied to automobiles, has well-defined meaning, understood by automobile drivers to mean not only voluntary act of leaving car on street unattended, but also stopping of car on highway, though occupied and attended, for length of time inconsistent with reasonable use of street, considering primary purpose for which streets exist. * * * Village of Wonewoc v. Taubert, 203 Wis. 73, 233 N. W. 755, 756, 72 A. L. B. 224." 3 Words and Phrases, Fourth Series, p. 20....