Ward v. Merrill

• Citation: 141 A.2d 438,154 Me. 45
• Parties: Donald F. WARD v. Paul E. MERRILL, D/B/A Merrill Transport Company.
• Decision Date: 14 May 1958
• Court: Supreme Judicial Court of Maine (US)

Page 438

141 A.2d 438

154 Me. 45

Donald F. WARD v. Paul E. MERRILL, D/B/A Merrill Transport Company.

Supreme Judicial Court of Maine.

May 14, 1958.

James E. Gagan, Robinson, Richardson & Leddy, Portland, for plaintiff.

Verrill, Dana, Walker, Philbrick & Whitehouse, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and BELIVEAU, JJ.

DUBORD, Justice.

This is an action to recover for injuries to the person and property of the plaintiff caused by an automobile collision and is based upon the alleged negligence of the operator of defendant's truck. A cross action between the same parties was tried at the same time. At the conclusion of the evidence, upon motions made in behalf of both parties, the presiding justice directed verdicts for the defendants in each case. The matter is before us on exceptions of the plaintiff, Donald F. Ward, to the direction of a verdict for the defendant, Paul E. Merrill.

The accident occurred at the intersection of Cottage Road and Broadway, two public highways in the City of South Portland. Cottage Road runs in a general northerly and southerly direction and intersects with Broadway which runs in a general easterly and westerly direction. Traffic at this intersection is controlled by a rather elaborate system of traffic lights. The plaintiff was travelling north on Cottage Road and approaching the intersection. Defendant's employee, admittedly within the scope of his employment, was operating defendant's trailer truck in an easterly direction on west Broadway and approaching the same intersection.

The plaintiff testified that when he was from 200 to 250 feet southerly of the intersection, he looked to his left and saw defendant's truck proceeding easterly on Broadway while the truck was between 300 and 400 feet from the intersection. From that point on, plaintiff did not see the defendant's truck again until the collision. Plaintiff testified that in the interim, his attention was given to school children out for a school recess in the vicinity. He also observed and took heed of pedestrians on the corner of the intersection. He also noted that there were cars stopped on his right ready to enter the intersection upon receiving a favorable light. The plaintiff, insisting that he had a green light, drove into and across the intersection, and said that he had proceeded 'a little beyond half way through the intersection' when the left side of his vehicle was forcibly struck by the front end of defendant's truck.

At the conclusion of the evidence, upon motion for a directed verdict on the part of the defendant, the presiding justice made a statement to the effect that in his opinion it made no difference who had the green light and who had the red light. He expressed the opinion that both drivers were negligent and apparently upon the theory that there was a duty on the part of the plaintiff to constantly be on the lookout for defendant's truck, ruled that the plaintiff was guilty of negligence as a matter of law and ordered the verdict upon which these exceptions are based.

The issue before us, therefore, is whether or not the ruling of the presiding justice was warranted, bearing in mind that the evidence, with its inferences, must be viewed in the light most favorable to the plaintiff.

'Under the familiar rule we must determine whether reasonable persons taking the evidence with its inferences in the light most favorable to the plaintiff could conclude that plaintiff was in the exercise of due care.' Crockett v. Staples, 148 Me. 55, 56, 89 A.2d 737.

'The principle of law which controls the action of this court, when exceptions are presented to test the propriety of a non-suit or a directed verdict for the defendant in the trial court, is to determine only whether upon the evidence under proper rules of law 'the jury could properly have found for the plaintiff', Johnson v. New York, New Haven & Hartford Railroad, 111 Me. 263, 88 A. 988, 989; and in determining that issue, the evidence must be considered in that light which is most favorable to the plaintiff. Shackford v. New England Tel. and Tel. Co., 112 Me. 204, 91 A. 931.' Barrett v. Greenall, 139 Me 75, at page 80. 27 A.2d 599, at page 601.

The evidence, most favorable to the plaintiff indicates that he entered the intersection upon the invitation of a vertical green arrow which in the language of R.S.1954, Chapter 22, § 87, Subsec. I, gave him permission to 'go'. There is some corroboration of plaintiff's testimony on this point in the record. At the same moment, the defendant's driver approaching from plaintiff's left, was faced by a red light which under the provisions of Subsec. III meant 'Stop' and denied him permission to proceed straight through the intersection. He was also faced with two green arrows, both constantly alight, one pointing right and one left. These arrows permitted him to enter the intersection for the purpose of making a desired turn as long as he did so cautiously, yielding the right of way to traffic lawfully in the intersection, all as provided by Subsec. IV. The plaintiff, when he was 200 to 250 feet back from the intersection, observed the defendant's truck some 300 to 400 feet away from the intersection proceeding in a line of traffic. He did not see the truck again until just as it was about to strike the left side of his car. The contention of plaintiff that he was a little beyond half way through the intersection has some corroboration in the evidence.

There was, of course, a duty on the part of the plaintiff to exercise care and vigilance. However, the children playing in the school yard, the pedestrians on the corner, the cars on his right, was well as the lights themselves, also demanded part of plaintiff's attention as did the traffic which was moving up on his left.

The law applicable to intersections controlled by stop signs has equal application here. In Crockett v. Staples, 148 Me. 55, 59, 89 A.2d 737, 739, it was stated:

'The plaintiff was not bound to anticipate defendant's negligence. He 'had a right to consider that the defendant would observe the law as to stopping'. * * * Putting the case differently, we have first, a period within which plaintiff could properly rely upon defendant's stopping at the stop sign and yielding the right of way to the plaintiff, and second, a period brief indeed within which plaintiff knew, or should have known, that the collision must occur unless he stopped or in some manner altered his course. Where were the plaintiff and the defendant when the first period ended? Did the plaintiff thereafter fail, as a matter of law, to exercise due care under the circumstances?

'We conclude that the question of contributory negligence was properly for the jury to answer.'

The facts in the case of Clark v. Philadelphia Housing Authority, 161 Pa.Super. 542, 55 A.2d 435, 436, are very similar to those in the instant case. The court said:

'We think this is a plain case where plaintiff's contributory negligence could not be declared as a matter of law. Plaintiff was entitled to the protection afforded her by the fact she entered the intersection with the traffic lights in her favor.'

Lights are installed for the...