Allen Macdonald v. R.J. Orton

• Decision Date: 06 October 1926
• Parties: ALLEN MacDONALD, b/n/f v. R.J. ORTON
• Court: Vermont Supreme Court

134 A. 599

99 Vt. 425

ALLEN MacDONALD, b/n/f v. R.J. ORTON

Supreme Court of Vermont

October 6, 1926

May Term, 1926.

ACTION OF TORT for negligence in operation of automobile. Plea, not guilty. Trial by jury at the June Term, 1925, Caledonia County, Willcox, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Warren R. Austin and William H. Edmunds for the defendant.

Oscar L. Shepard and Porter, Witters and Longmoore for the plaintiff.

Present WATSON, C. J., POWERS, SLACK, ^[1] BUTLER, and FISH, JJ.

OPINION

SLACK

This is an action of negligence growing out of an automobile accident which occurred in the village of Hardwick on November 25, 1924. The plaintiff had a verdict and judgment below, and the case is here on defendant's exceptions.

The first exception briefed is to the refusal of the court to grant defendant's motion for a directed verdict made at the close of all the evidence. The grounds of such motion are, in substance and in effect, that the evidence did not show negligence on the part of the defendant as alleged in the complaint, namely, that he was driving in a careless and negligent manner and at the left-hand side of the street and that the evidence showed that plaintiff was guilty of contributory negligence. By plaintiff as herein used is meant the person injured.

In considering these questions the evidence must be viewed in the light most favorable to the plaintiff, and the action of the trial court will be sustained if the evidence fairly and reasonably tends to support the verdict.

These facts were undisputed: The plaintiff was between 7 and 8 years old at the time of the accident. He was then on his way home from school, and was attempting to cross Main Street in said village from the easterly to the westerly side to reach a foot bridge that spans the Lamoille River connecting the business part of the village with the section where his parents then resided. When on the westerly side of the street, and traveling diagonally across the same in a northerly direction he was hit by defendant's car, which was moving in the same direction. This car was a seven-passenger Packard, seventeen feet long and about five feet wide, and was being operated by defendant as a public conveyance between Hardwick and Cambridge Junction. At the time of the accident defendant was returning from the latter place to Hardwick, his destination being the Hardwick Inn which is located on the westerly side of Main Street a short distance northerly of the place of the accident. He came into Main Street from Wolcott Street, a street that intersects with the westerly side of Main Street 5 or 6 rods southerly of where the accident happened, and proceeded northerly to the latter point. At that time there were several cars parked on the easterly side of Main Street between the junction of Wolcott Street and the place of the accident. Such cars extended into the street, diagonally, from the curb 10 or 12 feet, or a car's length. That part of Main Street here material is 32 feet and 9 inches wide. The defendant had a clear and unobstructed view of that street, except where said cars were parked, from the Wolcott Street intersection to the point where the accident happened, but his car could not be seen from Main Street in the vicinity of the accident until about the time it entered that street from Wolcott Street. At or about the time the defendant entered Main Street he sounded both horns--his car being equipped with a horn known as a siren and an electric horn horn of standard make--and sounded the latter horn several times on Main Street before he hit the plaintiff, but at what points whether in season to give the plaintiff timely warning of his approach, or when too near the plaintiff for either to avoid the collision, did not appear. When defendant's car hit the plaintiff it was being driven so near the sidewalk or curb on the westerly side of the street that other cars could, and did, pass between it and the cars that were parked on the easterly side of the street.

The plaintiff's evidence tended to show further that, in attempting to cross Main Street, he passed between two cars that were parked on the easterly side of the street; that as he came from between those cars he looked in both directions and "couldn't see anything at all" and started across the street in a diagonal course toward the footbridge that when half way across the street he again looked in each direction and did not see any car and continued on his way; that he traveled faster than a walk, "kind of a hippity-hop" gait; that he did not see defendant's car, or know of its approach, until it was about two feet from him--right on top of him--when he started to run and was hit; that when hit he was about 3 feet from the sidewalk or curb on the westerly side of the street, and that at that point defendant's car was being driven parallel with said walk or curb.

This evidence, together with the undisputed facts, made a case for the jury both on the question of defendant's negligence, and the question of plaintiff's contributory negligence. The defendant was bound, both by common law and by statute (G. L. 4697) to exercise due care and diligence in the operation and management of his car to avoid injuring the plaintiff. That he failed to do so is fairly inferable from the fact that plaintiff was only about 3 feet from the curb on the westerly side of the street when hit, and to reach that point had traveled at least 17 feet, at a hippity-hop gait, in plain view of defendant and defendant was driving his car about 3 feet from the westerly curb of the street and had so driven it a sufficient distance to bring it parallel with said curb at the point of accident although there was a clear space on his right of at least 12 feet between his car and the cars parked on the easterly side of the street.

Concerning the question of contributory negligence, the defendant insists that plaintiff's evidence that he looked for approaching cars is without probative force since the evidence shows conclusively that if he had looked he would have seen defendant's car. Even so, it cannot be said as a matter of law that plaintiff's failure to look or to observe defendant's car contributed to the accident, since it does not appear that when in the exercise of the requisite care and prudence he should have observed defendant's car it was on the westerly side of the street where it would be likely to hit him if he proceeded. It should be borne in mind that plaintiff's evidence tended to show that he had passed the danger zone of cars approaching from the south, provided such cars were operated in a careful and prudent manner, that he was so near the westerly side of the street that two cars operated in a careful and prudent manner could meet or pass abreast between him and the cars parked on the easterly side of the street, the distance being more than 17 feet. In these circumstances, the jury might well have found that his failure to look before, or while, crossing the street was in no sense the proximate cause, in whole or in part, of the accident. Thus far we have considered only the undisputed facts, and evidence introduced by plaintiff, but negligence on the part of defendant was fairly inferable from his own testimony.

His version of how the accident happened was that when plaintiff came into the street he was accompanied by another boy; that the latter turned back while plaintiff continued across the street; that in the circumstances it was impossible to avoid hitting one of them. In brief, he testified that when he came into Main Street from Wolcott Street he saw plaintiff and another boy come into the street from between the cars that were parked on the easterly side of the street; that he practically stopped his car 8 or 10 feet from where they came into the street; that they turned back and he "shot gears into second or slipped my clutch and let it roll down in high"; that as he started the boys appeared in the street again; that he applied his brakes as soon as he saw them the second time, and stopped his car in between 7 and 8 feet; that he was traveling in the middle of the street, 1 1/2 or 2 feet from the cars parked on the easterly side of the street; that plaintiff was at the left edge of his car frame when he applied his brakes, and was about 15 feet from the curb on the westerly side of the street when he was hit, and that he only turned his car to the left of the center of the street the "least bit." His evidence as to where the plaintiff was when he was hit was denied by every other witness who testified on that subject, including two called by defendant.

If defendant was traveling in the middle of the street, or practically so, when plaintiff was at the left edge of his car frame, and if he could stop his car in a distance of 7 to 8 feet, negligence on his part was fairly inferable from the fact that he ran far enough before he hit plaintiff to place his car in a position parallel with, and only about 3 feet from, the westerly curb of the street. So, too, want of due care and diligence on the part of defendant was fairly inferable from the fact that he avoided hitting the boy who was with plaintiff by turning his car to the left of the center of the street the ...