Kamillowitz v. Cumberland County Power & Light Co.

109 A. 487, 119 Me. 588, 1920 Me. LEXIS 44

• Court: Supreme Judicial Court of Maine
• Decided: March 27, 1920
• Status: Published

Opinion

The plaintiff, an invited passenger in an auto-truck operated by one Hayes, was injured in a collision with a car of the defendant company. Hayes was driving along Brighton Avenue in the City of Portland with the electric railroad tracks at the right side of the street. Discovering that he had passed his destination, he turned his truck toward the left and then backed, preparatory to turning about, and retracing his course. He backed upon or so near to the railroad tracks that the truck was struck by a passing electric ca,r.

Harry E. Nixon, and Jacob H. Berman, for plaintiff. Verrill, Hale, Booth & Ives, Leon V. Walker, and Joseph E. F. Connolly, for defendant.

Upon plaintiff’s exceptions to an order of nonsuit by the presiding Justice it is,

Held:

1. The fact that the plaintiff was not the driver of the vehicle in which he was riding did not relieve him of all care.

2. It was his duty, although a mere passenger, to use reasonable diligence in apprehending danger and in avoiding it if practicable.

3. The plaintiff’s own testimony indisputably proves that he made no effort whatever to ascertain whether a car was approaching when the course of the truck was changed, and that had he used the diligence of an ordinarily prudent man concerned for his own safety he would have discovered the peril and avoided it.

Without considering the question of negligence on the part of the defendant, it was a clear case of contributory negligence on the part of the plaintiff, and the nonsuit was properly ordered.

Exceptions overruled.