Blondin v. Carr

• Decision Date: 05 May 1959
• Docket Number: No. 330,330
• Citation: 151 A.2d 121,121 Vt. 157
• Court: Vermont Supreme Court
• Parties: Shirley BLONDIN v. David CARR.

Page 121

151 A.2d 121

121 Vt. 157

Shirley BLONDIN v. David CARR.

No. 330.

Supreme Court of Vermont.

May 5, 1959.

Edmunds, Austin & Wick, Burlington, for plaintiff.

McNamara & Larrow, Burlington, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

This action arises from an injury to a passenger in the collision of two motor vehicles at a street intersection. Trial by jury resulted in a verdict and judgment for the defendant. The plaintiff appeals and assigns error in the court's instructions to the jury. The case has been thoroughly briefed and well argued by both parties.

The accident occurred in the city of Burlington on February 3, 1957 at the intersection of Pearl and Church Streets. The plaintiff was seated in the front seat of a car operated by her husband, Richard Blondin. Their two young children were on the rear seat. The Blondin vehicle was travelling east on Pearl Street as it approached the Church Street intersection. The defendant was proceeding north on Church Street, approaching the intersection from the plaintiff's right. The operators of both cars involved testified they saw the other vehicle coming into the intersection yet both entered the junction and their vehicles came into collision. The evidence was such that it would warrant a finding of negligence on the part of either or both operators.

As the Blondin car neared the intersection, the plaintiff's young son, then aged two and a half, wanted to be moved to the front seat. The plaintiff was in the process of moving the child from the rear seat when the collision occurred.

At the conclusion of the court's charge, the plaintiff excepted to the submission of the issue of contributory negligence for decision. The exception is based on the contention that there was no evidence in the case of negligence on the part of the plaintiff.

Although the plaintiff was a passenger, the law required her to exercise reasonable caution and judgment for her own safety. Her conduct must meet the standard of a reasonably prudent person in the situation that prevailed at the time of the accident. Huestis v. Lapham's Estate, 113 Vt. 191, 196, 32 A.2d 115; Senecal v. Bleau, 108 Vt. 486, 494, 189 A. 139; McAndrews v. Leonard, 99 Vt. 512, 525, 134 A. 710.

Whether the plaintiff's conduct in undertaking the removal of her child from the rear to the front seat, while entering the intersection, met the standard of care required of her under the circumstances was a question for the jury to determine. It was their province to determine whether this course of action warranted an inference of due and personal care on her part, and what part, if any, such conduct had in the events that followed. Leclair v. Boudreau, 101 Vt. 270, 272-274, 143 A. 401, 63 A.L.R. 1427. The exception is without merit.

The complaint in this action alleged several distinct acts of negligent operation on the part of the defendant. In submitting the case to the jury, the court stated, in substance, that it was essential that the plaintiff establish 'the defendant was negligent as claimed by the plaintiff'. This language appears at two different occasions in the course of the instructions. The plaintiff excepted to this aspect of the charge on the ground it conveyed the inference that the plaintiff must prove the defendant negligent in each and every respect claimed in the complaint.

The expression used by the court left room for some misunderstanding on the part of the jury. Yet particular portions of instructions to the jury are not to be construed out of context. Flanders v. Newport Trucking Co., 102 Vt. 437, 438, 150 A. 128. When the charge, in this instance, is read in its entirety, it appears that the court made a clear explanation of the legal standard of care required in relation to each act of negligence alleged. The trial judge then went on to submit to the jury whether the defendant failed 'to observe any of the foregoing requirements, and if so, was such negligence * * * a part of the proximate cause of the accident and resulting injury * * *.' In the main, this instruction satisfied the established rule that the plaintiff was not obligated to prove every act of negligence specified in the complaint, stated in Healey v. Cady, 104 Vt. 463, 467, 161 A. 151; Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 425, 139 A. 440, 56 A.L.R. 1011; Bosworth v. Bancroft, 74 Vt. 451, 453, 52 A. 1050.

While it would have been safer to have corrected the inaccuracy in the charge when attention was directed to it by the plaintiff's exception, the charge, as a whole, fails to indicate that the jury was misled. Mt. Ida School v. Gilman, 97 Vt. 331, 336, 123 A. 198. This exception is overruled.

The plaintiff's remaining exception reaches more serious difficulty. The plaintiff excepted to the failure of the court to charge that if they should find that Richard Blondin was negligent, that such negligence could not be imputed to the plaintiff, his passenger. The exception is well founded.

The case was tried and submitted to the jury on the theory that the plaintiff was a guest passenger in the Blondin vehicle. No issue of agency or joint enterprise was raised. Consequently, any negligence by Richard Blondin could not be imputed to the plaintiff. Stevens v. Nurenburg, 117 Vt. 525, 529, 97 A.2d 250; Senecal v. Bleau, supra, 108 Vt. at page 495, 189 A. at page 142; Leclair v. Boudreau, supra, 101 Vt. at page 272, 143 A. at page 401; Lee v. Donnelly, 95 Vt. 121, 128, 113 A. 542; Wentworth v. Town of Waterbury, 90 Vt. 60, 62, 96 A. 334.

The fact that the plaintiff was the operator's wife does not vary the rule. If there was concurring negligence by the husband, it would not be attributed to the plaintiff by the marriage relationship. Miller v. Union Pacific R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285, 289; Snook v. Long, 241 Iowa 665, 42...