Blanche Duchaine, B/N/F v. Maynard C. Ray

• Decision Date: 02 May 1939
• Citation: Blanche Duchaine, B/N/F v. Maynard C. Ray, 6 A.2d 28, 110 Vt. 313 (Vt. 1939)
• Parties: BLANCHE DUCHAINE, b/n/f v. MAYNARD C. RAY
• Court: Vermont Supreme Court

6 A.2d 28

110 Vt. 313

BLANCHE DUCHAINE, b/n/f v. MAYNARD C. RAY

Supreme Court of Vermont

May 2, 1939

February Term, 1939.

Pedestrian Struck by Car While Crossing Street Near Intersection---1. Consideration of Evidence on Motion to Set Aside---2. Vigilance Required Where Crosswalk Not Used---3. Care Required of Pedestrian Crossing Street---4. Circumstances as Determining Due Care---5. Care Required of Pedestrian Crossing at Intersection---6. Attention of Pedestrian After Passing Center of Street---7. Right to Assume Due Care of Operator---8. Contributory Negligence of Pedestrian Held for Jury---9. Railroad Crossing Rule Not Applicable to Crossing Highway---10. Other Circumstances Held Not Conclusive on Contributory Negligence Issue---11. Conduct Judged by Situation as It Appeared---12. Refusal to Charge as to Effect of Failure to Look Effectively Held Proper---13. Improper Argument Cured by Withdrawal and Charge---14. Argument Suggesting Jury Put Themselves in Plaintiff's Shoes and Assess Damages Held Improper---15. Permissible Scope of Argument---16. Effect of Allowing Exception to Argument---17. No Reversal Unless Error Injurious---18. Argument Suggesting False Measure of Damages Held Not Injurious on Question of Liability---19. Amount of Verdict Considered in Determining Prejudice---20. Verdict Held Not to Indicate Prejudice on Damages from Improper Argument.

1. In reviewing exception to overruling of defendant's motion to set aside verdict, briefed solely on ground that plaintiff was guilty of contributory negligence as matter of law evidence was to be taken in light most favorable to plaintiff as in case of motion for directed verdict.

2. Greater vigilance and watchfulness was required of pedestrian crossing city street outside line of crosswalk than if she had remained on crosswalk, but she did not for that reason necessarily fail to exercise degree of care that law required.

3. Law does not say how often pedestrian about to cross street must look or precisely how far or when or from where, but he is simply required to exercise measure of care that prudent man would exercise in same circumstances.

4. Circumstances and dangers are always to be taken into account in determining what is due care or evidence of it.

5. In cities and villages due care requires pedestrian in all cases to look for traffic before starting to cross a main traveled street between intersections, or to look at such time and place as will reasonably be of some benefit in protecting him and giving him knowledge of condition of traffic.

6. Jury may reasonably infer that prudent man walking across street would give his chief attention after passing center of street to cars approaching him from his right and relax somewhat his watchfulness for cars approaching from the other direction.

7. Pedestrian crossing street had right to assume that operator of car would not drive in negligent manner, but could not for that reason omit any care which law required of her, as rule applies only in favor of one whose own conduct measures up to standard of due care.

8. In automobile negligence action, where plaintiff was walking across city street near intersection but outside of regular crosswalk and was struck from behind by automobile operated by defendant, who had proceeded easterly on one street, made semicircular turn north onto intersecting street and then west to enter yard of filling station situated on northwest corner of intersection by driveway a short distance north of intersection, held that rule that person will be presumed to see whatever is in line of his vision was not determinative on issue of plaintiff's contributory negligence, since she might not have seen car during instant that its position would have indicated her peril though she looked in all directions as she testified, and that her failure to turn and look directly behind her was not contributory negligence as matter of law.

9. The constant vigilance rule of railroad crossings does not apply to pedestrian crossing highway.

10. That ten feet of length of defendant's car must have passed plaintiff in automobile negligence action, who was injured while crossing city street outside of crosswalk before she was struck by door handle of car, that lights of car shone ahead even before front of car came abreast of her and that she needed to move only slight distance to escape peril, did not make her negligent as matter of law, since it would have taken less than a half-second for ten feet of car to pass plaintiff at speed of 18 miles per hour indicated by evidence, and since defendant's lights, which were dimmed, while he was driving into brightly lighted area would have shone so as to indicate to plaintiff her peril for only an instant due to semicircular course of car in turning into intersecting street and thence into yard of filling station on corner of intersection.

11. Conduct of plaintiff in automobile negligence case was to be judged on issue as to her contributory negligence by situation as it appeared or ought to have appeared to her at time of accident, and fact that one could see on looking back where a little more care might have saved her was not conclusive against her.

12. In action against operator of motor vehicle which struck and injured pedestrian crossing street, there was no error in denial of defendant's request for charge in substance that if plaintiff looked in all directions and by so looking could have seen car in time to avoid it, she did not look effectively and was therefore guilty of contributory negligence, since according to evidence as to semicircular course of car she might not have looked in proper direction at exact instant when it would have been visible to her.

13. Where remark of counsel in argument was withdrawn by him before jury and jury were instructed in charge to discard from their minds whatever had been said by counsel in argument and withdrawn, such withdrawal and charge were sufficient to cure whatever mischief there may have been in the remark.

14. Argument of plaintiff's counsel in automobile negligence action in substance suggesting that members of jury put themselves in plaintiff's shoes and assess damages on that theory was highly improper, and counsel should have been reprimanded by court and required to withdraw the remark and jury cautioned to disregard it.

15. Counsel are required to confine their arguments before jury to evidence in case and inferences properly to be drawn therefrom, and to avoid appealing to prejudice of jury.

16. Action of court in allowing exception to argument of opposing counsel was, in effect, a ruling that argument was proper and constituted error where argument was improper.

17. Error in ruling of trial court works reversal only when record satisfies Supreme Court that rights of excepting party have been injuriously affected thereby.

18. Though argument of plaintiff's counsel in automobile negligence action, in substance suggesting that members of jury place themselves in plaintiff's shoes and assess damages on that theory, suggested false standard for measurement of damages, held that effect injurious to defendant on question of liability was not shown, particularly in view of fact that according to record jury was warranted in finding freedom from contributory negligence on part of plaintiff and negligence on part of defendant.

19. In determining whether improper argument suggesting false standard for measurement of damages was prejudicial in respect to damages Supreme Court would consider whether amount of verdict indicated prejudice.

20. In action to recover for personal injuries received by minor as result of being struck by car while crossing street, verdict of $2,250 was not excessive and did not indicate that defendant was injuriously affected by improper argument in respect to measure of damages made by plaintiff's counsel, in view of evidence as to injuries suffered by plaintiff, a girl and a recent high school graduate, including loss of four front teeth, injury to back, and injury to lip resulting in slight permanent protrusion.

ACTION OF TORT to recover for personal injuries suffered by the plaintiff as the result of being struck by the defendant's automobile while crossing a street. Plea, the general issue. Trial by jury at the September Term, 1938, Chittenden County, Cushing, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Emory C. Mower for the defendant.

J. Boone Wilson, Charles F. Black and Willsie E. Brisbin for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

In this tort action the plaintiff, by her next fried, seeks damages for personal injuries suffered as a result of being struck by an automobile driven by the defendant when the plaintiff, a pedestrian, had nearly completed crossing Elmwood Ave. near its intersection with Pearl Street in the city of Burlington. Pearl Street runs east and west, or nearly so. Elmwood Avenue commences at Pearl Street and runs northerly substantially at a right angle. At or near the intersection the width of Pearl Street is about 40 1/2 feet, and of Elmwood Avenue about 35 feet. On the northeast corner of this intersection is the Unitarian church yard, and on the northwest corner is a gasoline filling station and yard which extends northerly on Elmwood Avenue for a distance estimated at 100 feet or more.

The driveway, which is referred to as the south driveway, leading into the filling station yard from Elmwood Avenue is 30 feet 3 inches wide from north to south and 9 1/2 feet in depth from the curbing to the outer edge of the sidewalk. The southerly edge of this driveway is about...