Bressett v. O'Hara

• Decision Date: 03 January 1950
• Docket Number: No. 1762,1762
• Citation: 116 Vt. 118,70 A.2d 238
• Court: Vermont Supreme Court
• Parties: BESSETT v. O'HARA.

Page 238

70 A.2d 238

116 Vt. 118

BESSETT v. O'HARA.

No. 1762.

Supreme Court of Vermont.

Jan. 3, 1950.

Russell E. White, Barre, for plaintiff.

John Molla, Barre, for defendant.

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

ADAMS, Justice.

This is an action to recover property damages resulting from a collision between the automobile of the plaintiff and one operated by the defendant. The accident occurred at the intersection of Berlin and Smith streets in the City of Barre about 11:15 on the evening of May, 4th, 1948. Trial was by jury with verdict and judgment for the plaintiff. The case is here on exceptions of the defendant.

Berlin street runs in a westerly direction from North Main street. Smith street crosses Berlin street and runs in a north and south direction. A store building is located at the northeast corner of the intersection, fifteen to twenty feet from the curb on Smith street and about four feet from the sidewalk on Berlin street.

The first exception briefed is to the denial by the court of the defendant's motion for a directed verdict. The ground of the motion was that the plaintiff was guilty of contributory negligence as a matter of law.

The evidence as to what happened was very conflicting; that of the plaintiff coming from him, two passengers in his taxi and one of the police officers who investigated the accident and that of the defendant coming from him and a friend who was with him. Viewed in the light most favorable to the plaintiff, giving consideration to such inferences as might reasonably be drawn by the jury from the facts appearing in evidence it tended to show: The plaintiff was operating his automobile as a taxi; he with two passengers had proceeded on North Main street and turned into Berlin street travelling westerly at a speed of between 15 to 20 miles per hour; as he approached the intersection he slowed down to from 5 to 10 miles per hour; he was on his right hand side of the street and when he was within 3 or 4 feet of the easterly side of Smith street he looked first to his right and then to his left; he could see northerly on Smith street 100 feet and saw no automobile approaching; he then entered the intersection and did not look again; when the front of his car was about two thirds through the intersection it was struck on its right side just back of the front fender by the car operated by the defendant. The plaintiff's car continued its forward motion but sharply to its left, leaving skid marks back of the rear wheels 21 feet long and it stopped with its front bumper against an electric light pole at the southwest corner of the intersection. The plaintiff did not see the defendant's car until just as it struck his car; at that time he applied his brakes sharply. The defendant and his friend had spent the evening at a house on Ladd street that runs parallel to Berlin street; they left there and proceeded down a steep grade and around a sharp curve into Smith street; at a point not over 100 feet northerly from the intersection the defendant's speed was between 30 and 40 miles per hour. After the collision, the defendant's car veered sharply to its right and stopped headed west on Berlin street; it left sidewise scuff marks 12 feet long. The jury could have inferred that the defendant's car was being operated with only its parking lights on; that its brakes were not working and that it did not slow down before entering the intersection.

It is true that on cross examination the plaintiff testified in substance that when he looked to the north just before entering the intersection, if he had seen the defendant's car and applied his brakes, he could have stopped before getting more than a foot beyond the easterly curb on Smith street. It is also true that the evidence of the defendant tended to show that his head lights were on; that he was proceeding slowly and came nearly to a stop before entering the intersection. This evidence was sharply contradicted.

It is true too, as the defendant says, that to free himself from contributory negligence, it was necessary for the plaintiff to look for approaching cars and look effectively. He was required to look with the degree of care that a careful and prudent person would have exercised under like circumstances. It will be presumed that he saw what was within the range of his vision, if he looked. It will not avail him to say that he looked and did not see what he could not have helped seeing if he looked. Beattie v. Parkhurst, 105 Vt. 91, 94, 163 A. 589, and cases cited.

This does not mean, however, that under no circumstances could the plaintiff enter the intersection, even though he knew defendant's car was approaching, without being guilty of contributory negligence. While the defendant had the advantage by reason of the fact that he was approaching the intersection from the plaintiff's right or favored direction, V.S. 10, 219, Sub. II, Rev. 1947, this did not necessarily give him the right of way over the plaintiff. His right of precedence depended upon his distance from the intersection, his speed, etc. Lachance, Adm'r v. Myers, 98 Vt. 498, 503, 129 A. 172; Jasmin v. Parker et al., 102 Vt. 405, 416, 148 A. 874; Rich v. Hall, 107 Vt. 455, 460, 181 A. 113; Beattie v. Parkhurst, supra.

While the plaintiff was not relieved from a compliance with the statute or the exercise of due care himself, he had the right to assume the defendant would observe the law; that he would not be operating a car at 11:15 at night with only parking lights on and without brakes or approach the intersection at an excessive speed and without due care. The plaintiff's care and diligence is to be measured in view of this assumption and the circumstances then attending. Crossman v. Perkins et al., 101 Vt. 94, 99, 141 A. 594; Porter v. Fleming, 104 Vt. 76, 80, 156 A. 903; Page v. McGovern, 110 Vt. 166, 171, 3 A.2d 543; Fletcher v. White, 114 Vt. 377, 379, 45 A.2d 569.

It is true as claimed by the defendant that where the material facts are undisputed and are so conclusive that but one reasonable deduction can be drawn therefrom, the question of contributory negligence is one of law for the court. Parro v. Meagher, 108 Vt. 182, 188, 184 A. 885 and cases cited. See also Kennedy v. Laramee, 115 Vt. 358, 362, 61 A.2d 547. These cases are distinguishable from the present...