Opinion
No. 3727.
Decided October 5, 1948.
Under the law of Maine, contributory negligence was established as a matter of law where there was no evidence upon which the plaintiff pedestrian, who knew of the proximity of the defendant's motor vehicle, could be found free from fault in suddenly emerging from a position of safety directly into the path of the vehicle in the nighttime and during a heavy rain.
CASE, for negligence. The plaintiff was injured by collision with an automobile operated by the defendant on the Memorial Bridge between Portsmouth, and Kittery, Maine, at about 8:30 P.M. on September 18, 1945. The accident occurred when the plaintiff stepped from the walkway of the bridge to the adjoining roadway over which the defendant was proceeding toward Maine. Trial by jury. The defendant's motions for a nonsuit and a directed verdict were denied, but upon reconsideration the latter was granted, subject to the plaintiff's exception. The case was reserved and transferred upon the plaintiff's exception by the Presiding Justice (Leahy, J.).
The night of the accident was unquestionably dark and stormy, and visibility was very poor. A heavy rainstorm accompanied by strong winds was in progress, and rain had been falling since afternoon. The plaintiff was traveling on foot from her apartment, near the Portsmouth end of the bridge, to a store on Badger's Island. She had spent the afternoon in a number of cares about Portsmouth, and conceded that she had had a glass of beer in each. Before leaving her apartment at 7:30 or 8:00 o'clock, she had obtained dry clothing, consisting of dungarees, a tan jacket, red shoes and socks, and a white bandana about her head. She was without other protection from the storm. She proceeded along the board sidewalk on the downstream side of the bridge.
The bridge was straight, approximately 1,200 feet long, and without crosswalks. The walkway was separated from the roadway by girders at twenty foot intervals. Single upright girders alternated with uprights flanked by inclined girders which converged at sidewalk level. The walk was eight feet wide, extending six or eight inches beyond the upstream side of the girders, and elevated about eight inches above the paved way. The way was twenty-eight feet wide from sidewalk to sidewalk. Such illumination as there was came from lights placed at the outside edge of the walkway on either side of the bridge. They failed to light the roadway of the bridge under the existing conditions.
When the plaintiff had passed the draw, and was somewhat better than three-quarters of the way across the bridge, she thought she heard some one call to her from the opposite sidewalk. Being unable to see across, she continued past a street light and the nearest girder, and turned to cross the roadway. She saw nothing approaching from Kittery, and looking toward Portsmouth, saw what she described as "indistinguishable" lights, "not more than a hundred feet away." It was her judgment that more distant lights were not visible because of the darkness and the storm. She considered the lights so far away that they were "nothing to worry" her, and started to cross. She took a few steps, not over four, when she saw a flash of light. She recalled nothing more.
The defendant was traveling from Portsmouth to Eliot, Maine, accompanied by four passengers. The automobile entered the bridge at a speed of approximately fifteen miles an hour, lights lighted, and windshield wipers in operation. At this point the passenger on the right of the front seat wiped the windshield with a paper handkerchief because it had become misty. There was no evidence that this process consumed any appreciable time, or continued after the automobile was more than a length onto the bridge. The defendant realized that visibility was poor. She estimated that her lights illuminated the road ahead for fifty or seventy-five feet.
When the automobile was better than halfway across the bridge a thump was felt which the defendant took to be a flat tire. She applied her brakes immediately, and stopped without changing course, within two or three feet of the sidewalk. Although she had seen a car ahead, and the lights of one or more cars approaching, neither she nor her passengers knew of the plaintiff's presence on the bridge until one of the passengers opened the right rear door. The plaintiff lay beneath the right running board, parallel to it, with one foot protruding beyond it. The rear of the automobile was opposite one of the girders.
Examination after the accident disclosed the automobile to be in good mechanical condition. Although mud spattered, there was no indication that any part of the car had come in contact with the plaintiff except the front wheel hub and the underside of the running board and muffler, which were wiped clean. Bits of clothing and flesh were found on the running board bracket and muffler.
Further facts appear in the opinion.
Varney Fuller (Mr. Fuller orally), for the plaintiff.
Devine Millimet (Mr. Millimet orally), for the defendant.
The plaintiff's right to recover is admittedly controlled by the law of Maine, which is not understood to differ materially from our own, except that the plaintiff there has the burden of establishing his own care. In our opinion a verdict was properly directed for the defendant because there was no evidence upon which the plaintiff could reasonably be found free from fault. The evidence relied upon to establish the defendant's negligence was of questionable sufficiency; but the evidence of the plaintiff's due care was in some ways even less impressive.
There is no dispute that visibility was extremely poor. There can be no doubt that the lights of the defendant's automobile, which were of average power, were more readily visible to the plaintiff, from a greater distance, than was the plaintiff to the defendant. The plaintiff stepped onto the highway, appreciating the difficulty of accurate perception, and realizing that there were lights upon the bridge within one hundred feet of her. There is no evidence that she looked a second time, or gave any consideration to whether the lights were stationary, or upon an automobile traveling in the lane which she proposed to enter. Actually, anything more than fleeting observation would have sufficed to disclose the approach of the defendant's automobile, which could not have been as much as a hundred feet away. The plaintiff's conclusion that the lights were so far away that they were "nothing to worry" her could not reasonably be found an excusable error of judgment. Cf. MacKelvie v. Rice, 92 N.H. 465, 467, and cases cited. She was aware of the conditions calling for caution, and appreciated the proximity of the defendant's lights. Under these circumstances, disclosed by her own testimony, due care would not have permitted the prompt conclusion that there was no cause for concern. In Milligan v. Weare, 139 Me. 199, 201, the Maine court held similar conduct, described as the sudden emergence "from a position of safety but of obscurity . . . directly in the path of an approaching automobile," to be negligent as a matter of law. It and other decisions of that court leave little doubt that the conduct of the plaintiff in this case was such as to bar her recovery. Cooper Company v. Can Company, 130 Me. 76; Levesque v. Dumont, 116 Me. 25; Moran v. Smith, 114 Me. 55.
While the issue with respect to the defendant's negligence need not be determined, it may fairly be said that the evidence furnished little basis for a finding for the plaintiff. If any was presented, it lay in the circumstance that the defendant failed to see the plaintiff. Yet the latter stepped into the roadway from behind a girder, at a point where the defendant had no reason to anticipate her approach. See Green v. Bond, 93 N.H. 144, 146. Under prevailing conditions, her attire was unlikely to attract attention. She was unseen by other occupants of the automobile. A determination of whether she entered the limited range of the defendant's lights at a point where the defendant should have seen her, and whether time then remained for the defendant to take saving action, would verge upon speculation, if it did not require it. See Grealish v. Odell, 89 N.H. 130; Bolduc v. Stein, 94 N.H. 89; Miller v. Daniels, 86 N.H. 193, 196. The motion for a directed verdict was properly granted.
Exception overruled.
All concurred.