Tomlinson v. Clement Bros., Inc.

• Decision Date: 13 April 1931
• Citation: 154 A. 355
• Court: Maine Supreme Court
• Parties: TOMLINSON v. CLEMENT BROS., Inc.

154 A. 355

TOMLINSON

v. CLEMENT BROS., Inc.

Supreme Judicial Court of Maine.

April 13, 1931.

On Motion and Exceptions from Superior Court, Cumberland County.

Action by George L. Tomlinson against Clement Bros., Inc. Verdict for plaintiff, and defendant brings exception and moves for a new trial.

Exception and motion overruled.

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

Hinckley, Hinckley & Shesong, of Portland, for plaintiff.

Charles L. Donahue and Paul E. Donahue, both of Portland, for defendant.

DUNN, J.

The driver of an automobile brought this action in the superior court in Cumberland county to recover damages for personal injuries from being struck by a passing motortruck which, different counts in the declaration allege in differing ways, the owner's servant, in the course of his employment, negligently operated along a highway. The declaration also alleges property damage. The plea was the general issue.

At the close of the evidence for the plaintiff, the defense rested its case without offering evidence, and argued that a verdict be directed for defendant. The motion was denied. Defendant noted an exception. The case was committed to the jury. Plaintiff, who lost his left arm, and whose automobile was slightly damaged, had the verdict in the sum of $15,000. Defendant filed a motion, for consideration by this court, for a new trial. The motion assigns the usual grounds.

Apart from the assignment of the motion that damages are excessive, the bill of exceptions and the motion raise the same questions. The brief for defendant does not argue damages. Therefore the ground that the award is inordinate is regarded as waived. In view of this, the bill of exceptions will suffice to determine the controversy. Accordingly, for the purpose of dismissing it as unnecessary, the motion is overruled.

On the 22d day of March, 1930, the plaintiff and two other young men, the three seated in a Ford roadster, each in contact with the one next him, plaintiff at the left and driving, were traveling in Maine. Between 6 and half after that hour of the clock, post meridian, while there was yet daylight, they approached Donnell's bridge in the town of Wells from a westerly direction.

The bridge was a masonry structure, approximately 27 feet in length and 17 feet in width, built on the principle of the arch, over the Ogunquit river. The block of concrete which formed the span of the bridge, and served as the roadway thereon, had a tarred surface, corresponding to that of the road on either side. Close to the bridge, on the north, was a rail fence. The fence was somewhat longer than the bridge, as a photograph shows. On the south, that side towards which it would have been for plaintiff to steer the course of his automobile to pass an approaching vehicle, a fence extended near the edge of the bridge for its length, and thence at an acute angle westerly, and a like angle easterly, the distance, bridge and all, as a witness estimates, of 123 or 124 feet. This fence this opinion will hereafter, for convenience, call the "long fence."

The bridge was narrower than the rest of the highway. As plaintiff neared the approach to the bridge, his car running 30 to 35 miles an hour, he saw, his testimony is, 200 feet ahead, the truck on-coming at a rate of speed comparable to, perhaps faster than, that of his own machine. Plaintiff testified: "It" (the pronoun referring to the truck for antecedent) "seemed to be rolling a lot. The body was rolling around and the truck coming fast, and I didn't think when I saw it coming, he had very good control of it, the way it was coming, so therefore I pulled to the extreme right of the highway to clear it." Again: "When I got on the extreme right-hand side of the road, I thought I was safe."

These excerpts are far from completing the picture of the case.

There was legally admissible evidence, and other evidence received without the interposition of objection, which became what the decisions call consent evidence (Moore v. Protection Insurance Co., 29 Me. 97, 102, 48 Am. Dec. 514; Brown v. Moran, 42 Me. 44), not essential to quote literally, to justify factual findings that, when plaintiff first saw the truck, it was beyond the easterly end of the long fence, and on its own side of the highway. Plaintiff drove on the approach to the bridge, and continued onto the bridge itself. His roadster, 5 feet and 5 inches in width over-all, to use a witness' words, he brought to within 5 or 6 inches of the fence on his right, but he did not bring it to a stop. There was, evidence shows, between the caps on his left wheels and the fence on that side of the bridge, clearance of 11 feet.

The truck, speaking of an evidentially warranted inference, because the evidence does not describe the particular truck, but a duplicate or similar one, had a body 7 feet 11 1/2 inches wide, hung high enough to clear the tops of the mudguards on the roadster.

For anything that appears, the truck could reasonably have been kept in course to the right of the center of the roadway on the bridge until it and the roadster had passed without interference, but it was not. Plaintiff had driven almost the length of the bridge, when the truck, having crossed to its left of the center of the roadway, collided with his car.

The shock did not immediately disturb any of the occupants of the roadster. Plaintiff and his companions heard a click, and a scraping sound as though against the mudguard, and, thinking such the extent of probable injury or damage, kept on until at a distance of about' 100 feet, plaintiff "noticed a numbness," and stopped his car. Where the truck was stopped is not shown.

Plaintiff had been driving, to recur to his testimony, with both hands on the steering wheel, his left elbow resting on the frame of the opening in the door, and protruding not more than 2 inches. When his car was at rest, plaintiff discovered that the instantaneous impact of the rapidly passing truck had severed his arm near the shoulder, no sensation registering.

The arm lay in the street, almost back to the bridge. The left door handle of the roadster was broken off, along that side of the body of the car was a single scratch, and the bow of the top frame was bent.

The bill of exceptions might well be overruled without an opinion, on the simple statement that there was evidence to sustain the facts, did it not seem necessary to discuss contributory negligence.

Contributory negligence, it is true, would...