Whitman v. Fisher

• Decision Date: 25 April 1904
• Citation: 98 Me. 575,57 A. 895
• Parties: WHITMAN v. FISHER.
• Court: Maine Supreme Court

57 A. 895

98 Me. 575

WHITMAN

v. FISHER.

Supreme Judicial Court of Maine.

April 25, 1904.

(Official.)

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by Susan R. Whitman against Joseph H. Fisher. Verdict for plaintiff on motion and exceptions by defendant. Motion sustained, and new trial granted.

Action on the case to recover damages for injuries received by reason of an obstruction in the highway on Main street, in the city of Lewiston.

The obstruction and accident are the same which formed the basis of the action in Whitman v. Lewiston, 97 Me. 519, 55 Atl. 414. The verdict for the plaintiff in that case was set aside by the law court, on the defendant's motion, as being against the law and evidence.

This action was subsequently brought against the defendant Fisher, abutting owner, who was alleged to have caused the obstruction.

The obstruction was a pile of dirt from 2 1/2 to 3 1/2 feet high at its highest point, and extending from the outer edge of the sidewalk into the street some 8 or 10 feet. It was barricaded on three sides by planks resting on barrels, the fourth side being the outer edge of the sidewalk. Other facts appear in the opinion. The jury rendered a verdict of $500 for the plaintiff.

The decision of the defendant's motion for a new trial by law court renders a statement of the exceptions unnecessary.

Argued before WISWELL, C. J., and WHITEHOUSE, POWERS, PEABODY, and SPEAR, JJ.

Tascus Atwood, for plaintiff.

Ralph W. Crockett, for defendant.

WISWELL, C. J. The facts in this case are the same as those in the case of Whitman v. City of Lewiston, 97 Me. 519, 55 Atl. 414.

That action, by the same plaintiff against the city, was to recover for injuries claimed to have been sustained by her on account of an alleged defective condition of the highway. The court decided that a verdict for the plaintiff could not be sustained, because it appeared clear to the court that the negligence of the plaintiff's husband, who was driving, contributed to the injury, and in a statutory action of that kind a plaintiff cannot recover if any efficient cause, for which neither the plaintiff nor the municipality is responsible, contributes to produce the Injury. In this case the plaintiff seeks to recover for the same accident against the person who caused the obstruction to be placed in the street. This is consequently a common-law action to recover for injuries caused by the alleged negligence of the defendant. The trial resulted in a verdict for the plaintiff, and the case comes to the law court upon the defendant's exceptions and motion for a new trial.

The defendant contends that the plaintiff ought not to be allowed to recover, because the negligence of her husband, who was driving the horse, is imputable to the plaintiff, and because the plaintiff was herself negligent The defense of imputable negligence is more especially raised by exceptions to the refusal of the presiding justice to give certain requested instructions to the effect that the negligence of the driver of the horse and vehicle was attributable to her.

The doctrine of imputable negligence, as announced in the case of Thorogood v. Bryan, 8 C. B. 115, which for a while prevailed in many of the courts of this country, was expressly rejected by this court in State v. Boston & Maine R. R., 80 Me. 430, 15 Atl. 36, and is contrary to the great weight of authority at the present time, at least, in this country as well as in England, where the doctrine was first promulgated. Although the negligence of one person may be properly...