Opinion
Opinion, March 20, 1963.
Negligence. Verdict.
The presiding justice can properly direct a verdict for the defendant, if it can be shown that as a matter of law the plaintiff did not exercise due care.
ON APPEAL.
This negligence action is on appeal from the direction of a verdict by the presiding justice. Appeal denied.
Edward J. Beauchamp, for Plaintiff.
Mahoney, Desmond, and Mahoney, by James R. Desmond, for Defendant.
SITTING: WILLIAMSON, C.J., WEBBER, TAPLEY, SULLIVAN, SIDDALL, JJ. MARDEN, J., did not sit.
This negligence action is before us on appeal from the direction of a verdict for the defendant.
The plaintiff, a tenant of the defendant, fell on the ice while walking on the driveway which the parties used in common and which the defendant landlord had agreed to keep "cleaned and plowed." There was no evidence to indicate that the ice accumulated from other than natural causes.
The plaintiff, who had been ill for a short period, was advised by his physician, "You got to get a little exercise, and get the air." At noon on a "nice, sunny day" in January the plaintiff went for a walk on the driveway. He could have walked from the garage to the corner of his house and return without crossing the ice, which he had observed. He preferred, however, to go further and to cross the ice. On retracing his steps he crossed the ice a second time without incident. On crossing the ice a third time, the plaintiff slipped, fell and was injured.
The plaintiff had no purpose in walking other than to obtain exercise. He was in no sense a captive on his premises seeking a path of escape. There was no emergency or urgency whatsoever requiring that he cross the ice.
In our view, an ordinarily prudent and careful person under the same circumstances would not have crossed the ice with the risk of falling. Rosenberg v. Bank, 126 Me. 403, 139 A. 82, 58 ALR 1405. Cf Thompson v. Frankus, 151 Me. 54, 115 A.2d 718; Daniel v. Morency, 156 Me. 355, 165 A.2d 64.
In reaching this conclusion we have taken the evidence in the light most favorable to the plaintiff. The presiding justice properly directed the verdict on the ground that the plaintiff as a matter of law was not in the exercise of due care.
The entry will be
Appeal denied.