Williams v. Kinney

220 A.2d 234, 1966 Me. LEXIS 179

• Court: Supreme Judicial Court of Maine
• Decided: May 31, 1966
• Status: Published

Opinions

MARDEN, Justice.

On appeal from judgment to defendant non obstante veredicto.

The ease arises out of collision between motor vehicles proceeding northerly on a four lane highway in Scarborough, the defendant’s vehicle overtaking and colliding with the plaintiff’s vehicle as it was making a left turn to enter premises westerly of the highway.

The highway, Route 1, may be considered as running north and south. It is a highway approximately 40 feet in width, with the center marked by double yellow lines, with what has been referred to as two lanes on the easterly side of the yellow lines for north bound traffic and two lanes on the westerly side of the yellow lines for south bound traffic. For purposes of discussion we identify the four lanes in the highway as numbered one to four from west to east. Applying this identity to the lanes, lanes one and two would be considered as lanes for south bound traffic, and lanes three and four would be considered lanes for north bound traffic. Further identifying these lanes, lane two would be termed the passing lane for south bound traffic and lane three the passing lane for north bound traffic. There is no median strip or barrier.

Facts not in dispute establish that plaintiff was proceeding north toward Portland, after dark, in lane four intending to enter a place of business on the west side of the highway, which called ultimately for his making a left turn into the entrance. In moving from lane four into lane three he was aware, by use of his rear view mirror and observation of lights, of a vehicle to his rear which he placed at a distance of approximately 500 feet. In making the move from lane four to lane three he displayed his directional signal light and thereafter proceeded northerly in lane three. As he was so proceeding he was aware by the same means of observation that the car to his rear had drawn closer, which he estimated then at 300 to 400 feet behind him. He continued northerly with his left turn signal light operating and, no south bound traffic to the contrary, he made his left turn into the path of the defendant who was then attempting to pass the plaintiff in lane two, on plaintiff’s left. A collision resulted involving property damage and personal injury.

Upon trial, plaintiff was awarded verdict over which, upon motion, judgment was granted for defendant, and plaintiff appeals. The case comes to us with a record of the testimony of the plaintiff and two corroborating witnesses, counsel correctly testing the validity of the judgment n. o. v. upon the evidence supporting the plaintiff viewed in the light most favorable to him. Kennedy v. Flagg, 145 Me. 399, 75 A.2d 850, Ward v. Merrill, 154 Me. 45, 48, 141 A.2d 438, the same test as applied to a directed verdict, Maine Civil Practice § 50.4. In the terms of the case, the question is whether plaintiff was contributorily negligent as a matter of law.

The granting of the judgment n. o. v. was founded upon defendant’s contention that plaintiff “saw the defendant’s vehicle close to him and in the lane of the highway to his left prior to the time he started his left turn and, nevertheless, made his left turn into the path of the defendant’s overtaking vehicle” ; which conduct when measured by our rule governing “left turns” made plaintiff contributorily negligent as a matter of law.

Plaintiff’s testimony under cross-examination yielded evidence upon which defendant’s motion was based.

“Q Was there any traffic — at the point at which you decided to turn into Martin’s driveway (his destination), was there any traffic coming south bound?

“A One up by the Portland Drive-in Theater.

“Q So that you did not have to wait ?

“A No, sir.

“Q To make your turn?

“Q And you say you had seen the truck or vehicle approaching you in back of you at some distance away back here, so that when you prepared to make your turn into Martin’s you weren’t worried about that either, were you. You weren’t worried about how close this truck was to you when you made this turn?

“A No, he had plenty of room to go by me on the inside.

“Q When was the last time you saw this truck before the collision ?

“A I looked back just before I got ready to turn.

“Q What did you see?

“A I saw — I just heard a racing engine. That is all.

“Q Pardon?

“A I just heard a racing. I was over in the left-hand lane. I figured I was safe. That is where I was supposed to be to make a left-hand turn.

“Q What did you see when you looked back? You just said you looked back over your shoulder just before you turned. What did you see?

“A I saw headlights coming at me.

“Q How close were they this time ?

“A I don’t know how close they were.

“Q Were they still 500 feet away? “A No.

“Q Could you see, could you tell on your look backward where this truck was located? Was he in the lane you have marked number 3, the inside, north bound lane, or the outside north bound lane?

“A He was in the passing lane of the south hound lane. (Emphasis added.)

“Q. Let me understand you. He was in this lane you have marked number 2, this passing lane of the south bound lane when you saw him, is this correct, before, just before you turned?

“A I saw the headlights. I turned over, I saw the truck way back up there about 500 feet. Then I looked back once before; just before I turned I didn’t look back. I didn’t expect the trailer truck to come hit me.

“Q Just before you turned; you looked back again ?

“A No, not just before I turned. I didn’t figure this trailer truck was going to hit me.

“Q Just a minute ago, I understood you to say just before you turned you looked back and saw this truck coming in the passing lane of the south bound lane, is that correct.

“A I don’t understand what you mean. Please repeat it.

(Pending question read by the Reporter.)

“A (Q) How far away do you say he was when you saw him at that time ?

“A He was pretty close to me then.

“Q Just before you turned, you saw him very close to you in this passing lane of the south bound roadway, right?

“A Yes, sir.

“Q And then you turned ?

“Q Right into his path ?

“A I didn’t know where he was. I didn’t know he was going to come on the left-hand side of me. He had plenty of room to go on the right-hand side of me.

“Q Did you not just say, Mr. Williams that before you turned, you looked back and you saw him in this south bound lane, wasn’t that your testimony just a minute ago ?

“Q And then you made your turn right in front of him, but you say you thought that he was going to pull back and pass you on the right, is this your testimony ?

“A Yes, sir.”

The problems posed by collisions between vehicles making a “left turn” and others, approaching either from the opposite direction or overtaking, are adequately recorded in the Maine reports.¹

While footnote 1 lists all which have been called to our attention, and which we have found, we do not represent the list is complete.

Our cases involving such collisions have, to this time, dealt only with two lane and three lane highways.

Cases involving a two lane highway (Class A cases), bearing traffic in both directions, represent one setting. In such cases, any left turn may involve crossing the path over which a vehicle approaching from the opposite direction has the right of way, Fernald v. French, 121 Me. 4, 6, 115 A. 420, or an overtaking vehicle has a qualified right of way, O’Malia v. Thomas, 123 Me. 286, 287, 122 A. 773.

In Fernald, supra, (1921) the first situation was passed upon and the frequently cited “reasonable insurance of safe passage” rule for the turning vehicle was established.

In McCarthy, supra, 132 Me. p. 359, 171 A. p. 261 (1934) the second situation was passed upon and the court said: “No less strict rule can be applied to operators attempting to cross the right of way (emphasis added) of cars coming from behind.”

This rule originated in Verrill v. Harrington, 131 Me. 390, 395 (1931), 163 A. 266, dealing with a three lane highway.

In cases involving three lane highways (Class B cases) bearing traffic in both directions, the middle lane was recognized as a “passing” lane over which traffic in either direction had a right of way. Verrill, supra, 131 Me. p. 395, 163 A. 266. This became a subject of statute by Chapter 168 P.L. 1947, and is now 29 M.R.S.A. § 991.

This rule was super-imposed upon the Class A cases by McCarthy, supra.

Verrill, supra, established the rule that a driver intending a left turn to cross the right of way of an overtaking vehicle must so watch and time the movements of the other car “as to reasonably insure himself of a safe passage.”

O’Malia, supra, (1923) determined that on a two lane highway the overtaking car has a qualified right of way over the second lane, — with statutory qualification- since Chapter 327 P.L. 1929, sections 19 and 21(a).

Verrill, supra, determined that on a three lane highway the overtaking car has a right of way over the middle lane, — with statutory qualification since Chapter 168 P.L. 1947.

These decisions as to a two lane road Fernald and O’Malia cases, supra, as to a three lane road, Verrill, supra, and the statutes² as to both roads, are realistically and rationally founded and grant a right of way to the overtaking car, conditioned upon its compliance with statutory terms and the ever present rule of due care.

The present case solicits the applicability of these subsisting rules to a four lane highway, without median strip or barrier, but centered with double yellow lines, and utilized by traffic as recited at the beginning of this opinion. Absent a statute limiting upon the present facts, the use of such a way, and consistent with its use in common with others, a motorist “may drive on any part of it,” O’Malia, supra, 123 Me. at p. 287, 122 A. at p. 773, and the rules of due care as established for the more conventional two and three lane ways and announced in the cases cited in the footnote, subject, however, to statutes since enacted, govern.

Our earlier cases of Fernald, McCarthy and Verrill, all supra, place significance upon any “right of way” involved and the duty of the operator proposing to cross such a right of way. Assuming, without finding, that Chapter 71 P.L.1957, as amended, by Section 32, Chapter 429 P.L. 1957 and now 29 M.R.S.A. § 1152 ³ awards the leading car precedence, — a right of way, due care does not permit the possessor of the right of way to exercise it without regard to the circumstances. Fitts v. Marquis, 127 Me. 75, 77, 140 A. 909, and McCarthy, supra, at 353. A constant duty of due care overrides a right of way.

Admittedly the nature of the locality, — business or residential, the statutory need for audible warning of proposed passage and whether or not, if necessary, such warning was given is a jury question, but the case is not here to test the defendant’s jury-found negligence. Assuming defendant ignored a statutory duty to give audible warning, assuming defendant had statutory permission to overtake and pass plaintiff on plaintiff’s right, assuming plaintiff had complied with all rules of the road preliminary to his left turn, plaintiff was, before turning, aware of defendant’s approach from the rear; plaintiff was, before turning, aware of defendant’s approach in lane two and, without further observation, executed his left turn with resultant collision.

Assuming plaintiff had precedence and concomitant right to turn and assuming defendant had established no right to pass, plaintiff was at pertinent times conscious of defendant’s increasing proximity and of defendant’s presence in lane two, and it became his duty, not by virtue of crossing any right of way which defendant had gained, but by virtue of the duty superimposed upon the exercise of his own right of way, by rules both of due care and the road⁴ to determine that his movement could be made with reasonable safety. The rules of Fer-nald, McCarthy and Verrill, supra, must be extended, within the facts of this case, to both a four lane way and to situations where the rule of due care negatives the exercise of a technical right of way. Plaintiff was burdened with so watching and timing the movements of the other car as to reasonably insure himself of a safe passage. Fernald, supra, 121 Me. at p. 9, 115 A. 420, McCarthy, supra, 132 Me. at p. 359, 256. This he did not do and his failure charges him with contributory negligence as a matter of law.

It becomes unnecessary to discuss defendant’s contention that the appeal should be denied by reason of plaintiff’s failure to bring up a reproduction of the “chalk” made and used during trial. In this case the absence of such “chalk” does not prejudice our understanding of the evidence.

Appeal denied.

WILLIAMSON, C. J., did not sit.

1 . Class A (2 lane way) cases: Ritchie v. Perry, 129 Me. 440, 152 A. 621; Gustin v. Asskov, 129 Me. 494, 151 A. 443; Esponette v. Wiseman, 130 Me. , 155 A. 650; Crawford v. Lancaster, 130 Me. 525, 157 A. 859; Field v. Webber, 132 Me. 236, 169 A. 732; McCarthy v. Mason, 132 Me. 347, 171 A. 256; Rawson v. Stiman, 133 Me. 250, 176 A. 870; Bedell v. Androscoggin & Kennebec Railway Company, 133 Me. 268, 177 A. 237; Erwell v. Harmon, 139 Me. 47, 27 A.2d 107; Davis v. Baker, 139 Me. 229, 28 A.2d 740; Beane v. Hartford, 140 Me. 62, 33 A.2d 927; Kennedy v. Flagg, 145 Me. 399, 75 A.2d 850; Bennett v. Lufkin, 147 Me. 216, 85 A.2d 922; Gamache v. Cosco, 147 Me. 333, 87 A.2d 509; Feely v. Norton, 149 Me. 119, 99 A.2d 285; White v. Schofield, 153 Me. 79, 134 A. 2d 755; Beal v. Wood, 156 Me. 414, 165 A.2d 61; and Bickford v. Berry, 160 Me. 9, 196 A.2d 752.

Class B (3 lane way) cases: Verrill v. Harrington, 131 Me. 390, 163 A. 266; Reid v. Walton, 132 Me. 212, 168 A. 876; and Pillsbury v. Kesslen Shoe Company, 134 Me. 504, 188 A. 726.

2 . Now 29 M.R.S.A. § 943 allowing overtaking vehicles free passage to the left.

29 M.R.S.A. § 991 designating middle lane of three lane highway as “passing” lane.

3 . Ҥ 1152. * * *

“Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

“No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. * *

4 . Ҥ 1191. * * * No person shall * * * turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course, or move right or left upon a roadway unless and until such movement can be made with reasonable safety. * *