Arthur Sears v. Leo Laberge

• Citation: 71 A.2d 687,116 Vt. 168
• Decision Date: 07 February 1950
• Docket Number: 97.
• Parties: ARTHUR SEARS v. LEO LABERGE
• Court: United States State Supreme Court of Vermont

71 A.2d 687

116 Vt. 168

ARTHUR SEARS v. LEO LABERGE

No. 97

Supreme Court of Vermont

February 7, 1950

January 1950.

ACTION OF TORT based upon negligence in operation of a motor vehicle. Trial by jury, Addison County Court, December Term 1948, Hughes, J., presiding. Verdict and judgment for the plaintiff.

Judgment affirmed.

Frederick W. Wakefield, Jr. for the defendant.

Louis Lisman and Harold I. O'Brien for the plaintiff.

Present SHERBURNE, C. J., JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

OPINION

JEFFORDS

This is an action of tort to recover for injuries sustained from the alleged negligence of the defendant. A. motion to dismiss was filed which was denied with an exception to the defendant. The grounds of the motion are, in substance, that this plaintiff previously brought a suit based on the same facts as the present one against this defendant and two others; that during the trial of the former case the plaintiff was required to elect whether he would proceed against the other two defendants as principals or against this defendant as agent; that an election was made to proceed against the principals, and an order was made dismissing this defendant; that the trial resulted in a disagreement and the former case still remains on the lower court docket. The defendant alleged that, for the reasons stated, the trial court was without jurisdiction to try the case.

An exception taken below may be waived so as to bar its consideration on appeal, as where, on a trial, a party takes a step or adopts a course directly inconsistent with the exception previously taken. Such a step is a motion to dismiss the case. Frederick v. Gay's Express, 111 Vt. 411, 413, 17 A.2d 248; Bemis v. Aldrich, 102 Vt. 277, 147 A. 693.

Nor was the defendant entitled to have the motion granted on its merits. He relies in his brief on Raymond v. Capobianco, 107 Vt. 295, 178 A. 896, 98 A.L.R. 1051. But that case is distinguishable from the present for the reason, if for none other, that the plaintiff had procured a judgment against the master before bringing an action against the servant. There was no error in the denial of the motion.

The defendant at the close of the plaintiff's case made a motion for a directed verdict which was denied. This motion was renewed at the close of all the evidence and again denied with an exception allowed the defendant. The grounds of the motion were lack of proof of negligence and that the plaintiff on his own testimony was guilty of contributory negligence.

Viewed in the light most favorable to the plaintiff, as it must be in considering this motion, the evidence tended to show the following facts: During the afternoon of May 9, 1945, the defendant drove his father's milk truck to Lackard's garage to have it repaired. This garage is located on the westerly side of route 7 in the northerly outskirts of the city of Vergennes. He drove the truck onto an uncovered ramp located in the garage yard in its northerly part. When the repairs had been completed he backed the truck off from the ramp. At that same time the plaintiff, who had been in the garage building to make a purchase, came out of a door in the southerly part of the building. He looked to the north and saw the truck backing off the ramp with its wheels at an angle so that it was backing in a northeasterly direction. He did not look in that direction again and walked through the garage yard in a southeasterly direction towards the highway intending to go to his home which was a short distance southerly of the garage. He had proceeded about 15 feet from the garage door and had reached a point about 8 feet southerly of the three gasoline pumps which were in the garage yard when he was struck by the front right hand corner of the truck. His left foot was caught between the tires of the right rear dual wheel of the truck and he was dragged or pulled for 75 to 100 feet until his foot was released and he landed just off from the highway. The defendant after backing off from the ramp had turned the truck and had driven southerly between the pump and the highway to proceed southerly on it to test out the truck. As he was proceeding about 5 miles an hour, he felt a bump but thought it was due to a hole which had been repaired. He did not realize that his truck had struck the plaintiff until he had gone a short distance along the road and had glanced in his rear view mirror and had by this means seen the plaintiff lying beside the road. He immediately came back to the place where the plaintiff was lying. The reason the defendant had looked in the mirror was to see how close a car was which he had previously noticed coming from the north. No warning of any kind was given the plaintiff of the approaching truck.

The defendant in support of his claim of contributory negligence relies on Eagan v. Douglas, 107 Vt. 10, 175 A. 222; McKirryher v. Yager, 112 Vt. 336, 24 A.2d 331; Dawley v. Nelson, 115 Vt. 461, 63 A.2d 866 and Farrell v. Greene, 110 Vt. 87, 2 A.2d 194. But these cases are not factually in point with the one here. In the first two the plaintiffs in crossing a highway either did not look at all or looked ineffectually in the direction of the approaching car in question. The Dawley case is not at all in point. In the Farrell case the plaintiff was at all times aware of the approaching car but did nothing to save herself from injury.

The facts in the present case are quite similar to those in Colburn v. Frost, 111 Vt. 17, 9 A.2d 104. The plaintiff in that case was crossing a street, not at a cross walk, in the City of Rutland. He looked both ways and...