
    Henry J. Barker vs. Carroll W. Perry and Walter J. Brennan.
    Penobscot County.
    Decided November 29, 1938.
   The plaintiff, a passenger in a Ford truck driven by the defendant Perry, brought suit to recover for personal injuries suffered in a collision with a truck left by the defendant Brennan without lights after dark in the highway. After a verdict for the plaintiff in the sum of $2800, the defendant Perry has filed a motion for a new trial. It is argued that the verdict is against the evidence and that the damages are excessive.

The plaintiff, on November 21, 1934 after his work for the day was finished, asked Perry for a ride to his home. The defendant Brennan had left his truck without lights in the highway just to the right of the center line of the travelled part of the road. As Perry was proceeding in the darkness at a speed of about thirty miles an hour with the plaintiff in the seat beside him, he saw another car approaching. He dimmed his lights and swung to the right. As he did so, the Brennan truck suddenly loomed up in front of him and, before he had time to pull to the left sufficiently to clear it, a collision took place.

Perry maintains that he did everythingpossibleto avoid the accident and that he was not negligent. The plaintiff contends that the question of Perry’s negligence was for the jury.

Fellows & Fellows, for plaintiff.

Alan L. Bird, for defendant.

In considering a motion for a new trial by a defendant the evidence must be viewed in the light most favorable to the plaintiff. Searles v. Ross, 134 Me., 77, 80, 181 A., 820. Whether Perry, after seeing the approaching car and dimming his own lights, was driving at such a speed that he could bring his car to a stop within the distance illumined by his own headlights, in short whether under the particular conditions then existing he was using due care, was certainly a question for the jury.

The plaintiff’s right hip was fractured and the femur broken. He was in the hospital at Millinocket two weeks and was in the Eastern Maine General Hospital for seven months. One leg is shorter than the other and he walks with a limp. He was earning $35 a week, his hospital and medical bills were $940. Damages of $2800 were certainly not excessive. Motion overruled.  