Dyer v. Ayoob

Action on the case for negligence. Verdict for the plaintiff with reasonable assessment of compensatory damages. General motion for a new trial on the usual grounds. There is evidence in the case tending to- show that the plaintiff, somewhat advanced in years, on June 7, 1934, in attempting to cross the main highway running through the Town of Blaine, was struck by the defendant’s Peerless sedan and seriously injured. The driver of the automoblie, with full opportunity to observe the plaintiff crossing the street in front of him, continued on with excessive speed until his belated application of the brakes and a swerve to the right did not and could not prevent an accident. A finding that the driver of the car, who was the defendant’s employee, ivas negligent and the owner chargeable therefor is not manifestly wrong. Nor can it be held upon this record as a matter of law that the [503] plaintiff was guilty of contributory negligence. He testifies without contradiction that, as he came out from behind the car from which he had alighted and before he started to cross, he looked up and down the road and saw no automobiles coming towards him. A consideration of the distance to the point where an approaching car would come into view and the apparent speed of the defendant’s automobile supports his assertion. The jury was warranted in finding that under the circumstances of this case an ordinarily careful and prudent person would have deemed it safe to have attempted to make the crossing. This is the measure of care required of a pedestrian crossing a public street. Wetzler v. Gould, 119 Me., 276; Sturtevant v. Ouellette, 126 Me., 558. Motion overruled. J. Frederick Burns, for plaintiff. M. P. Roberts, Herchel Shaw, for defendant.