Towle v. Morse

• Decision Date: 09 December 1907
• Citation: 103 Me. 250,68 A. 1044
• Parties: TOWLE v. MORSE.
• Court: Maine Supreme Court

68 A. 1044

103 Me. 250

TOWLE

v. MORSE.

Supreme Judicial Court of Maine.

Dec. 9, 1907.

On Motion from Supreme Judicial Court, Somerset County.

Action on the case by Frank P. Towle against Edwin M. Morse. Verdict for plaintiff, and defendant moves to have the same set aside. Motion overruled.

Action on the case brought by the plaintiff to recover damages for personal injuries received by him as a result of the alleged failure of duty on the part of the defendant toward him in the use and management of his automobile on the public highway between Pittsfield and Palmyra.

Argued before EMERY, C. J., and WHITEHOUSE, STROUT, PEABODY, CORNISH, and KING, JJ.

Manson & Coolidge, for plaintiff. Gould & Lawrence, for defendant.

WHITEHOUSE, J. The plaintiff recovered a verdict of $225 for personal injuries received by him as a result of the alleged failure of duty on the part of the defendant toward him in the use and management of his automobile on the public highway between Pittsfield and Palmyra. The case comes to the law court on a motion to set aside the verdict as against the evidence upon the question of the defendant's liability.

In his amended declaration the plaintiff thus states his cause of action: "The defendant, being the owner, operator, and manager of an automobile, was then and there running said automobile on said public highway toward the plaintiff, and when the defendant with his automobile as aforesaid arrived at a distance of 100 feet from the plaintiff with a loud voice requested the defendant to stop said automobile, and visibly signaled by putting up the hand to the defendant to stop said automobile; hut the defendant negligently and unlawfully continued to run at a high rate of speed said automobile, which was propelled by an exploding gasoline engine, toward the plaintiff, until the defendant with said automobile arrived within 30 feet of the plaintiff, when said defendant did then and there negligently and unlawfully stop said automobile in the middle of said public highway, and the defendant did then and there go away and leave said automobile there standing without shutting off said exploding gasoline engine, but negligently and unlawfully allowed it to produce a loud noise."

It is further alleged in conclusion that "on account of the aforesaid unlawful and negligent act of the defendant in operating his automobile" the plaintiff's horse became frightened, and the plaintiff was violently thrown to the ground and injured.

Although the averment in the plaintiff's declaration thus characterizes the alleged failure of duty on the part of the defendant as a single "unlawful and negligent act," it will be seen that when analyzed it in fact comprises three distinct acts of negligence, viz.: First, in negligently and unlawfully continuing to run his automobile after receiving the signal to stop; second, by stopping the car "in the middle of the public highway," and, third, in leaving the car in that situation without shutting off the exploding gasoline engine, and thus allowing it to "produce a loud noise."

There is less than ordinary discrepancy in the testimony relating to the material facts and vital questions involved in the controversy. The responsibility resting upon the jury was not so much to reconcile conflicting evidence as it was to deduce the legitimate conclusion from facts proved or admitted.

On the morning of August 9, 1906, the plaintiff and his sister were riding in an open wagon drawn by a horse 5 1/2 years old on the highway leading from Palmyra towards Pittsfield. It is not questioned by the defendant that the horse was ordinarily gentle and well trained, and reasonably suitable for driving upon the highway. They were traveling southerly, and when near the residence of Mr. Keirstead, situated on the easterly side of the road, and at a little distance therefrom, they discovered the canopy top of an approaching automobile, a touring car, in which the defendant and his companion, Mr. Whitman, were traveling northerly. The distance between the parties at this moment is estimated by the plaintiff at 100 feet and by the defendant at 500 feet. The marked difference of opinion upon this point, however, did not become of great importance. The plaintiff says that as the road was narrow where they were likely to meet he "hollered" to attract the defendant's attention when he saw the top of the car, and as soon as the occupants came into view his sister raised her hand as the signal for them to stop, and the defendant admits that he saw this signal. At this juncture the plaintiff's team was north and the automobile was south of Mr. Keirstead's residence. A short distance from the highway the driveway leading from Keirstead's house diverges in two directions, one branch turning northerly and then southerly, thus forming a triangle with the highway for a base, which was about two rods long. Within this triangle, "three or four rods" from the highway, stood a post with a mail box upon it.

The defendant admits that he...