Aiken v. Metcalf

• Decision Date: 06 May 1916
• Citation: 97 A. 669,90 Vt. 196
• Parties: AIKEN v. METCALF.
• Court: Vermont Supreme Court

97 A. 669

90 Vt. 196

AIKEN

v. METCALF.

Supreme Court of Vermont. Orleans.

May 6, 1916.

Exceptions from Orleans County Court; Leighton P. Slack, Judge.

Action by Raymond Aiken against Oliver Metcalf. There was a directed verdict for defendant and judgment thereon, and plaintiff excepts. Reversed and remanded.

Cook & Norton, of Lyndonville, for plaintiff. J. W. Redmond, of Newport, and W. W. Reirden, of Barton, for defendant.

POWERS, J. The plaintiff was run down by the defendant's automobile and suffered injuries on account of which he seeks damages in this action. At the time of the accident he was crossing a street in the village of Irasburg, and was passing northwesterly on a crosswalk. This street was on the easterly side of the common—an open park of 2 or 3 acres. To the south of the crosswalk, and a few rods away, the road forked, one branch turning sharply to the west and running along the south side of the common, and the other branch bearing to the east and running down a slope toward Glover. On the east side of the street, nearly opposite the point of the accident, were the town hall, and about 45 feet south thereof a building containing two stores. The crosswalk extended from a point near the northwest corner of the store building diagonally across the street, bearing to the north, to a walk that extended across the common to its northwest corner. It was broad daylight, and no other person, vehicle, or object was in any part of the roads or streets named, except the witness Semino, who was following the plaintiff across the street, and was some 10 feet behind him. The automobile came from the south; but whether it came along the south side of the common or up from the Glover road is not shown by the record. There were photographs in the case Which, at the defendant's request, were marked by witnesses so as to show the point in the road where the plaintiff was hit and the point where the automobile stopped after the accident. From these it appears that the plaintiff had reached a point a step or two from the grass on the west side of the roadway, and that the machine ran a distance of 40 feet or more before it stopped.

A verdict was ordered in the court below for the defendant on the ground of contributory negligence. It is here argued that the record shows no evidence tending to show negligence on the part of the defendant. But we cannot indorse this claim, and only take the time to say that the evidence tended to show that the defendant was negligent, if not reckless, and that the accident would not have happened if he had exercised any care whatever to have prevented it.

The question of contributory negligence is much more difficult. On this branch of the case, as all admit, the burden was on the plaintiff to produce evidence, direct or circumstantial, from which the jury could reasonably infer that he was in the exercise of due care. At first glance, it must be admitted it is difficult to say that he has met the requirements of this rule; for he could have avoided the accident easily enough if he had looked toward the south while he was crossing the street. But in considering whether he was in the exercise of due care several legal rules must be kept in mind. The plaintiff and defendant had equal and reciprocal rights in the use of the highway, and each was bound to so make use of his own right as not to interfere with that of the other. Each was bound to exercise due care; but the decree of watchfulness which this rule imposed upon them was not the same. The defendant was driving a machine, which on account of its speed, weight, and quietness was capable of doing great damage, and the law puts upon one so situated a greater and more constant caution. He was bound to exercise care commensurate with the dangers arising from a lack of it. Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, 51 L. R. A. (N. S.) 989; O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36; Brown v. Thayer, 212 Mass. 392, 99 N. E. 237. While the rule which applies to the plaintiff is the same in terms, it is not the same in its practical application. Nor did the rule applicable to one approaching a railroad crossing apply to this plaintiff. The look and listen rule (Baker v. Close, 204 N. Y. 92, 97 N. E. 501, 38 L. R. A. [N. S.] 487) and the constant vigilance rule (Gerhard v. Ford Motor Co., 155 Mich. 618, 119 N. W. 904. 20 L. R. A. [N. S.] 232; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. [N. S.] 345, 4 Ann. Cas. 396; Lynch v. Fisk Rubber Co., 209 Mass. 16, 95 N. E. 400; Graham v. Hagmann, 270 Ill. 252, 110 N. E. 337) do not apply to a pedestrian using the public highway. The law does not impose upon him these hard and fast rules of conduct. It simply requires that he shall exercise for his own safety the measure of care that a prudent man would exercise in the same circumstances. But as circumstances vary so do the practical requirements of the rule vary. What is prudence in one case may be negligence in another, recklessness in another, and downright foolhardiness in still another. The farmer on a back and unfrequented highway is not held to the same degree of vigilance when he crosses the road to his barn as is the man who attempts to cross a busy city street crowded with traffic. The circumstances and dangers are always to be taken into account in determining what is due care or the evidence of it. Benedict v. Union Agricultural Society, 74 Vt. 91, 52 Atl. 110; Bachelder v. Morgan, 179 Ala. 339, 60 South. 815, Ann. Cas. 1915C, 888; Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. B. A. (N. S.) 345, 4 Ann. Cas. 396; Graham v. Evening Press Co., 135 Mich. 302, 97 N. W. 697; Shea v. Reems, 36 La. Ann. 966.

When a pedestrian is about to cross a street he must use the care of a prudent man, but the law does not undertake to further define this standard. The law does not say how often he must look, or precisely how far, or when or from where. Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428.

"It cannot be laid down as a rule," says the court in Undhejem v. Hasting, 38 Minn. 485. 38 N. W. 488, "that in all cases, without regard to the extent to which the street is usually traveled, it is negligence for one...