Barrows v. Powell

• Decision Date: 05 January 1943
• Docket Number: No. 309.,309.
• Citation: 29 A.2d 708
• Court: Vermont Supreme Court
• Parties: BARROWS v. POWELL et al.

29 A.2d 708

BARROWS

v. POWELL et al.

No. 309.

Supreme Court of Vermont Chittenden.

Jan. 5, 1943.

Exceptions from Chittenden County Court; Henry F. Black, Judge.

Personal injury action by Benjamin Barrows, by next friend, against Homer E. Powell and another. A judgment was rendered against both defendants, and the named defendant brings exceptions.

Affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Sylvester & Ready, of St. Albans, for plaintiff.

Austin & Edmunds, of Burlington, for defendants.

JEFFORDS, Justice.

Late in the afternoon of October 20, 1941, defendant Powell was driving south from St. Albans on U. S. route 7. The plaintiff was riding in his car as a guest passenger. At a point a few miles south of that city the car was in collision with one travelling in the opposite direction and then being operated by Delphis F. Murray. The plaintiff was injured and brought suit against both Powell and Murray. At the trial there was a verdict and judgment against both defendants. Defendant Powell only, hereinafter referred to as the defendant, brings his exceptions to this Court. One on which he relies is to the denial of the lower Court of his motion for a directed verdict, based on the ground that there is no evidence in the case to justify the jury in finding that this defendant was guilty of gross negligence.

A reading of the transcript discloses some facts which are not disputed but it also shows many material to the issue concerning which there is conflict. Those about which there is no dispute are as follows: The accident happened shortly before six o'clock when it was so dark that the lights of both cars were on and the collision occurred about in the center of the road which was of standard width and dry. The road was nearly straight so that each driver had a clear vision of the lights of the other car when the two were at least 1,000 feet apart. As the cars approached each other both were going about 40 miles per hour, that of the defendant descending a slight grade. The accident happened a few feet south of a culvert and the point of contact was the right front of each car. Both cars at the time of collision were to their left of the center of the road.

The evidence as to the position of the two cars in the road, with reference to its center line, as they approached each other and the actions of the respective operators is much in conflict. The defendant testified that when he first noticed the lights of the other car it was about 800 feet away. That when it was about 300 feet distant he noticed it was on its wrong side of the road. He continued along on his side until the cars were about 150 feet apart when he applied his brakes and turned to his left going from 60 to 80 feet before the collision, about 50% of which distance was on his left hand side of the road. Witness Floyd Barrows testified that this defendant had told him after the accident that "it all happened so quick that he didn't know just what was the cause of it or how it happened". Powell's version of this conversation was that he said he couldn't tell exactly what Murray did. "I didn't know just how he came into me. That was the part about which it happened so quickly. * * * I didn't know just how he came into me." The defendant's testimony tending to show, as he claims, that because of various conditions and circumstances then existing he acted as a prudent person or at least without gross negligence in turning when and as he admits he did becomes immaterial in view of the construction that we place on the evidence as later on set forth.

Merrill Gove who was driving a car that had been following the defendant's for some distance and was between three and four hundred feet back of it at the time of the colllision corroborated this defendant's testimony to the effect that he was driving on his side of the road as the two cars approached and that the other car turned to its left before the defendant did. He also testified that the defendant's car did not go from one side of the road to the other before the accident and that when it did turn it was pulled abruptly to its left. Gove estimated that the Murray car was from 125 to 150 feet from the defendant's car when the former went across to the defendant's side and that its turn was very gradual.

Raymond Williams, who was riding on the front seat of the Gove car, testified that he saw the Murray car when it was about 1,000 feet away from the defendant's and that it was then on its wrong side of the road. He stated that the defendant pulled sharply from his right hand side of the road to the left when the two cars were from 125 to 150 feet apart.

The testimony of Gardner Stearns, another passenger in the Gove car, is rather confusing. The substance of it, taken in the light most favorable to the plaintiff, is that the defendant pulled his car gradually to its left to avoid the accident when his car and the Murray cat were about 1,000 feet apart and continued along with the defendant's car about one half over the center line until the collision. Stearns saw the Murray car for the first time when the defendant started to pull to his left and Murray was then on his wrong side of the road and pulled sharply to his right just before the collision. This witness apparently felt that he had created a wrong impression by his testimony as to the distance the defendant's car proceeded to its left of the center of the road before the collision but it is not at all plain just what part, if any, of his prior testimony he intended to correct and consequently it was for the jury to determine which of his statements were to be accepted as true. Wakefield v. Champlain Marine Co., 111 Vt. 243, 244, 13 A.2d 183; Piper v. Oakland Motor Co., 94 Vt. 211, 213, 109 A. 911.

The testimony of Murray is extremely confusing and conflicting, but taken most favorably to the plaintiff it is, in effect, that he was proceeding along on his right side of the road at about 40 miles per hour when he noticed the defendant's car approaching about 800 feet away. According to this witness when the Powell car was 300 or 400 feet away it started to weave from one side of the road to the other doing this a few times, it might be 2 or 3, not going way over to the left until it was about 100 feet away. The weaving did not cause Murray to turn to his left but this was caused by the final turning of the defendant's car to its left. At that time Murray was on his side of the road. He then let up on the gas and knowing that there was to be a collision he pulled his car to an open space in the road to his left. Murray testified that defendant "pulled back to his right about the same time I pulled to the left, I think" and denied that he (Murray) pulled back to his right after he had turned to the left.

The plaintiff who was rendered unconscious from contact with the windshield was unable to tell anything about the cause of the accident.

If Murray's testimony could have been reasonably believed by the jury there can be no question but that they would have been warranted in finding the defendant guilty of gross negligence under the provisions of P.L. 5113 as defined in Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139; Sorrell v. White, 103 Vt. 277, 282, 153 A. 359, and numerous other later decisions of this Court. The weaving of defendant's car in the road and the final pulling over into Murray's lane of travel would fully warrant the jury in finding that here was no momentary inattention, error in judgment or loss of presence of mind, but a deliberate act and the failure to exercise a slight degree of care and was the result of an indifference...