Alice L. Powers v. Earl H. Lackey, Jr

• Decision Date: 04 October 1938
• Citation: 1 A.2d 693,109 Vt. 505
• Parties: ALICE L. POWERS v. EARL H. LACKEY, JR
• Court: Vermont Supreme Court

1 A.2d 693

109 Vt. 505

ALICE L. POWERS v. EARL H. LACKEY, JR

Supreme Court of Vermont

October 4, 1938

May Term, 1938.

Existence of Gross Negligence Determined from Particular Facts---Test on Defendant's Motion for Verdict in Automobile Guest Action---Facts Held to Make Jury Question on Gross Negligence---Duty of Operator When Vision Obscured---Visibility Considered on Question of Gross Negligence---Gross Negligence Defined.

1. There is no concrete rule by which existence of gross negligence can be determined, for each case must be judged according to its own facts.

2. On defendant's motion for directed verdict in action by guest passenger in automobile for gross negligence based upon provisions of P. L. 5113, test is whether defendant's conduct in given situation was such that it can reasonably be inferred that accident was result of indifference to his duty to his guest or utter forgetfulness of latter's safety.

3. In action by guest passenger in automobile based upon provisions of P. L. 5113, where evidence, taken in light most favorable for plaintiff, tended to show that defendant, familiar with road and aware that traffic from opposite direction was to be expected, drove into heavy bank of fog at speed of twenty-five miles per hour, proceeded 100 feet on left of center of road and turned left to enter side road, failing to pass to right of and beyond center of intersection as required by P. L. 5110, subd. III,

and taking no precaution to ascertain whether another car was approaching, and that collision occurred with automobile proceeding in opposite direction on its own right-hand side of main road, held that there was jury question on issue of defendant's gross negligence.

4. When vision of operator of automobile is obscured by fog, smoke or otherwise, so that he can see nothing ahead, it is his duty not to proceed.

5. Condition of visibility is circumstance to be considered on question of gross negligence.

6. Gross negligence is failure to exercise slight degree of care.

ACTION OF TORT to recover for personal injuries sustained in automobile accident. The plaintiff was a guest passenger in the defendant's automobile, and the action was based upon P. L. 5113 permitting recovery by guest passenger for gross or wilful negligence. Plea, the general issue. Trial by jury at the September Term, 1937, Rutland County, Jeffords, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Fenton Wing & Morse and John A. M. Hinsman for the defendant.

Asa S. Bloomer for the plaintiff.

Present MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and CLEARY, Supr. J.

OPINION

MOULTON

There is no concrete rule by which the existence of gross negligence can be determined, for each case must be judged according to its own facts. Rich v. Hall 107 Vt. 455, 459, 181 A. 113; Hall v. Royce, 109 Vt. 99, 104, 192 A. 193. When, as here, the question arises upon the defendant's motion for directed verdict in an action based upon the provisions of P. L. 5113, the test is whether his conduct in the given situation was such that it can reasonably be inferred that it was the result of an indifference to his duty to his guest or an utter forgetfulness of the latter's safety. Franzoni v. Ravenna, 105 Vt. 64, 66, 163 A. 564; Anderson v. Olson, 106 Vt. 70, 72, 169 A....