               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit


No. 06-1097

                       LAWRENCE A. ROSENDAHL,

                        Plaintiff, Appellant,

                                     v.

                        DIANNE M. BRANGWYNNE,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

       [Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]


                                  Before

                   Torruella, Selya and Howard,
                         Circuit Judges.



     Donald Grey Lowry on brief for appellant.
     Bernard J. Kubetz on brief for appellee.



                            October 6, 2006
             Per Curiam.      Plaintiff-appellant Lawrence A. Rosendahl

was injured in a collision between his motorcycle and an automobile

driven by defendant-appellee Diane M. Brangwynne on May 29, 2003.

His suit in Maine Superior Court was removed to the United States

District     Court   for    the   District    of    Maine   based   on   diversity

jurisdiction.        There, a jury rendered a verdict in favor of the

defense, based on its finding that plaintiff's fault was at least

equal   to    defendant's     fault   within       the   intendment   of   Maine's

comparative negligence statute.              Me. Rev. Stat. tit. 14, § 156.

Plaintiff moved for judgment as a matter of law notwithstanding the

verdict or, in the alternative, a new trial.                 The district court

denied his motion.         This appeal followed.

             The evidence, viewed in the light most supportive of the

defense verdict, showed that, at a time immediately preceding the

accident, the plaintiff was traveling down a public road behind a

pickup truck.     When the road widened, he moved one lane to the left

of the pickup and maintained a position close to the pickup's rear

left quarter panel (in the driver's blind spot).                He continued in

this position even as he approached a parking lot entrance/exit

point on the right side of the road, at which exiting cars were

queued.      His position made him less visible to cars leaving the

lot.    The plaintiff was blind in his right eye, and his left eye

provided only 48 degrees of peripheral vision on his right side.

In all events, the plaintiff's position impeded him from scanning


                                       -2-
to the right even if he were to turn his head.

          Meanwhile, the defendant had come to a stop in her

vehicle at the threshold of the exit from the parking lot.       She

looked both ways along the road before starting to pull out, but

failed to see the plaintiff on his motorcycle.      She crossed into

the plaintiff's path; he saw her for the first time at that moment

and applied his brakes.   His motorcycle collided with the side of

the defendant's car, and he flew over the top of the vehicle.    Even

at the moment of impact, the defendant did not see the plaintiff or

realize that she had collided with a motorcycle.

          At the time of the collision, the plaintiff held a

recently-expired temporary practice permit for his motorcycle,

issued by the State of Florida.    The plaintiff had failed a road-

skills licensing test in Florida.       He also had read a manual on

motorcycle riding issued by the State of Florida, which contained

substantial material on safety precautions (including safe road

positioning).

          The plaintiff submits that, as a matter of law, the

record shows that he was not negligent in any way that bore a

causal connection to the accident.      He specifically contends that

an attribution of negligence to his choice of road positioning is

"unduly burdensome and inherently impracticable."

          We understand that, as a general matter, a driver having

the legal right of way may assume that other drivers will respect


                                  -3-
his right of way until he has notice of facts to the contrary.   See

Moore v. Fenton, 289 A.2d 698, 706-708 (Me. 1972).      At the same

time, however, "the benefits of the existence of a legal right of

way are conferred not absolutely but are enjoyed in relation to the

correlative generalized doctrine that reasonable care must be

exercised in particular and appropriate attendant circumstances."

Id.   In this case, the defendant was fully cognizant of the fact

that vehicles traveling along the road had the right of way and

acted accordingly by stopping her car and looking both ways before

proceeding.   She left her place of safety - the parking lot - only

because she did not see the plaintiff.   While the plaintiff could

proceed with a "degree of faith" in other drivers' respect for the

rules of the road, id. at 707, he could not claim absolute faith in

the perceptual acuity of every other driver, especially when he

voluntarily positioned himself in a hard-to-observe place.       In

these circumstances, we think that he had a duty to avoid, to the

extent practicable, road positioning that impaired visibility as

between his motorcycle and vehicles entering into, or crossing, the

stream of traffic.

          Comparing the degrees of fault between plaintiff and

defendant in a case like this one is not easy.   The law of Maine is

that, as "long as the causal fault of both parties is factually in

dispute, it is the sole prerogative of the jury to determine the

comparative degrees of fault of each of the parties to a negligence


                                -4-
action."   Minott v. F. W. Cunningham & Sons, 413 A.2d 1325, 1332

(Me. 1980)(internal quotation marks and citations omitted).   The

jury's determination in this regard was within the bounds of

reason.

           The judgment is affirmed.




                                -5-
