Alma L. Palmer v. Howard Marceille

• Decision Date: 02 October 1934
• Citation: 175 A. 31,106 Vt. 500
• Parties: ALMA L. PALMER v. HOWARD MARCEILLE ET AL
• Court: Vermont Supreme Court

175 A. 31

106 Vt. 500

ALMA L. PALMER v. HOWARD MARCEILLE ET AL

Supreme Court of Vermont

October 2, 1934

May Term, 1934.

Negligence---Liability of Public Employee for Negligence---Highways---Jury Questions---P. L. 5110, subd. XIII---Automobiles---Effect of Violation of Safety Statute on Question of Negligence---Presumptions---To "Park" Car---Contributory Negligence---Burden of Proof---General Rule Concerning Motorist's Control of Automobile with Respect to Ability To Stop within Distance Objects Can Be Seen Ahead---Effect on Care To Be Exercised by Motorist of Assumption That No Obstacles Will Be Unlawfully in Highway---Sufficiency of Evidence as to Contributory Negligence of Motorist Driving into Smoke Obscured Area.

1. That one is public employee, performing governmental act, does not exempt him from personal liability for negligent misfeasance.

2. Where employee of State highway board, while acting under orders of his superior to gather into piles and remove scrapings from shoulder of highway, set fire to some hay that had been raked out of ditch causing dense smoke to blow across highway and conceal truck, standing on right-hand side thereof, a portion of which at least was on tarvia surface of highway, and failed to give warning of its presence to approaching travelers on highway, held that his failure to give such warning made question of his negligence for jury in action by another motorist in collision with rear end of such truck.

3. Whether such truck was parked or left standing upon improved or used part of highway so as to interfere with traffic thereon in violation of P. L. 5110, subd. XIII, held for jury.

4. Violation of safety statute gives rise to rebuttable presumption of negligence.

5. To "park" car means something more than mere temporary stoppage for temporary purpose.

6. In

ACTION OF TORT for negligence, burden is on plaintiff to show freedom from contributory negligence, but direct or affirmative evidence to point is not required.

7. General rule, although subject to exceptions and not to be invariably applied in every situation, is that motorist is required to proceed at such speed that his car can be stopped or turned aside within distance that objects can be seen ahead of it, from which it logically follows that he should not proceed at all when obscurity is such that he can see nothing.

8. While motorist proceeding on highway was entitled to assume that no obstacle was unlawfully upon highway, motorist was not thereby absolved from exercise of reasonable care.

9. In action of tort for negligence to recover damages for injuries sustained by motorist in collision of her automobile with rear of truck standing on right-hand side of highway, a portion of which at least was on tarvia surface of highway, truck being concealed by smoke from fire set by defendant to pile of rubbish while engaged in clearing highway, held that, under circumstances of case, plaintiff having observed smoke and its density, driving into it at rate of speed that made it impossible to stop if truck had been seen after entering smoke, when there was ample time to stop or to turn to left side of highway which was clear before reaching obscured area, was guilty of contributory negligence.

ACTION OF TORT to recover damages for bodily injuries in automobile collision alleged to have been caused by defendant's negligence. Plea, general denial. Trial by jury at the December Term, 1933, Addison County, Sherman, J., presiding. Verdict directed for the defendants, and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Lawrence, Stafford & O'Brien for the plaintiff.

Wayne C. Bosworth, James B. Donoway, and Fenton, Wing & Morse for the defendants.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

MOULTON

There is little dispute concerning the facts in this case. The plaintiff was taking her children to school in her automobile, and driving at a speed of about thirty miles an hour. The road had a tarvia surface 18 to 20 feet wide beyond which there was a shoulder, and beyond that a ditch 3 feet deep and 6 feet wide. She observed, about 500 feet ahead, a column of dense smoke, proceeding from a fire at the road side, which entirely covered the right-hand side of the highway. She slackened speed, but to what extent she was unable to say, a car's length before she entered the obscured area, and kept to the extreme right of the traveled portion of the road. As she did so, her car collided with the rear of truck standing, in part at least, upon the tarvia surface, and she suffered the injuries for which she has brought suit. She did not see the truck before the impact. The defendants were employees of the State highway board. Plue, the superior, directed Marceille, his helper, to gather into piles and remove the scrapings from the shoulder of the road preparatory to oiling the surface, and to clean out the ditches. Marceille, assisted by one Wimett, proceeded to do so and, having partly filled the truck with rubbish Wimett, under Marceille's direction, set fire to a forkfull of hay which had been raked out of the ditch, the smoke from which was blown diagonally across the road, behind the truck, which was standing on the right-hand side of the highway at a distance variously estimated as being 5 to 10 feet beyond the fire. In causing the fire to be kindled Marceille was acting under the instruction of county road superintendent Cady. At the time of the accident the fire had not been burning over five minutes and the smoke had been blowing across the highway for three or four minutes. Plue was not present at that time. The truck was of one and one-half tons capacity with a flat-bottomed platform and rack body and weighed with its then load about two and one-half tons. The collision was of such force that the plaintiff's automobile was overturned and badly damaged, and the truck, which had its emergency brake set, was shoved a distance of 20 feet off the road and through the ditch, and the rack was sprung out of shape. The road was substantially level and perfectly straight for some distance on either side of the place of the collision. The plaintiff was familiar with it. Marceille took no steps to warn any approaching travelers of the presence of the truck, although, at the time of the kindling of the fire and until the accident occurred, he was standing nearby, doing nothing. Witnesses called by the plaintiff, who passed the place in the opposite direction just before the accident, testified that the smoke obscured only on the side of the road upon which the plaintiff was driving.

At the close of the plaintiff's evidence the trial court directed verdict for the defendants, and the plaintiff excepted. The grounds for the motion upon which the ruling was based are in brief these: (1) That the plaintiff was contributorily negligent; (2) that she assumed whatever risk might be encountered by her election to drive into the smoke at a substantially undiminished speed; (3) that Marceille was not negligent; (4) that he was engaged in the prosecution of a governmental project, and therefore not liable, even if negligent; (5) that Plue was not present, did not direct the placing of the truck or the lighting of the fire, and had no participation in the occurrence, and therefore could not be held liable for the act or default of Marceille. We take up these grounds in inverse order.

The last-mentioned ground is not an issue here. It is not briefed by the plaintiff as error, and no claim is made that, on the evidence, Plue was liable. The judgment in his favor is, therefore, to be affirmed.

The fact that Marceille was a public employee performing a governmental act does not exempt him from personal liability for negligent misfeasance. This principle has been repeatedly recognized. In Florio v. Schmolze, 101 N.J.L. 535, 129 A. 470, 40 A.L.R. 1353, the defendant, the driver of a fire truck while going to a fire, negligently collided with the plaintiff's horse and wagon. The court said (129 A. at page 471): "He (the defendant) must answer for his negligence, though in the performance of a public duty, in the same manner as if he were an individual in private life and had committed a wrong to the injury of another. The servant of the municipality is required to perform his duty in a proper and careful manner, and when he negligently fails to do so, and in the performance of his duty negligently injures another, his official cloak cannot properly be permitted to shield him against answering for his wrongful act to him who has suffered injury thereby." And again (pages 472, 473 of 129 A.): "We think that a sound public policy requires that public officers and their employees shall be held accountable for their negligent acts in the performance of their official duties to those who suffer injury by reason of their misconduct. Public office or employment should not be made a shield to protect careless public officials from the consequences of their misfeasance in the performance of their public duties." In Moynihan v. Todd, 188 Mass. 301, 74 N.E 367, 108 Am. St. Rep. 473, the action was predicated upon the alleged negligent blasting of a rock in the highway by which the plaintiff was injured, and the evidence tended to support the claim. The defendant was the superintendent of streets and directed the operation. He claimed exemption from liability because of his public employment and the governmental nature of the work. The court said (page 305 of 188 Mass. 301, 74 N.E. 367, 369): "We are of opinion that the principle which underlies the rule that public officers and other agencies of government are not liable for negligence in the performance of public duties goes...