Brooks v. Holmes., 1728.

• Decision Date: 04 January 1944
• Docket Number: No. 1728.,1728.
• Citation: 35 A.2d 374
• Parties: BROOKS v. HOLMES.
• Court: Vermont Supreme Court

35 A.2d 374

BROOKS

v.HOLMES.

No. 1728.

Supreme Court of Vermont.

Jan. 4, 1944.

Exceptions from Washington County Court; Orrin B. Hughes, Judge.

Action of tort by Selah H. Brooks against Herbert I. Holmes for damages arising out of automobile collision. Judgment for defendant, and plaintiff brings exceptions.

Affirmed.

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

George R. McKee, of Burlington, for plaintiff.

Theriault & Hunt, of Montpelier, for defendant.

JEFFORDS, Justice.

This is an action of tort tried by the court without a jury. From the findings the following material facts appear: Shortly after seven o'clock in the evening of March 23, 1941, the plaintiff was driving his car down hill on Northfield street in the city of Montpelier and the defendant was driving up the hill. When the cars were about 350 feet apart the defendant saw the lights of plaintiff's car. At that time the rear wheel of the plaintiff's car struck a mound of ice in the road which caused it to skid to its left on the pavement which was very slippery. The car continued in its skid down the hill for about 150 feet until its left side came in contact with the left front wheel of the defendant's car. When the collision occurred the front end of the plaintiff's car was on the plaintiff's right-hand side of the road, but the rear end was at an angle of 30 degrees, and partly over on the defendant's side of the road. When the plaintiff's car began to skid, and at the time of contact, it was travelling between 15 and 18 miles per hour.

When the defendant saw the lights of the other car he was travelling about 20 miles per hour on his own side of the road and continued on that side up to the time of the collision. The defendant did not see that the plaintiff's car was skidding in the highway over “onto” his side of the road until he was within a short distance of the plaintiff's car. About 3 seconds elapsed between the time the defendant saw the other car skidding “on” the defendant's side of the road and the time of impact. The defendant immediately took his foot off from the accelerator and put it on the brake and pulled farther to his right-hand side of the road when he saw that the rear end of the other car was bound to skid into the front end of his car. Immediately before the collision the defendant could have stopped his car within a distance of 20 feet.

The following finding was made: “That on account of the short space of time that elapsed between the time that the defendant saw the plaintiff's car skidding on his side of the road, and the time of the collision, the court finds that there was nothing that the defendant could have done to have avoided the collision”.

The plaintiff made a motion for a judgment in his favor on the facts as found. This motion was denied and judgment entered for the defendant. To these rulings the plaintiff excepted. These exceptions, together with one relating to the refusal to grant a certain requested finding, are the only ones presented here for consideration.

The requested finding just referred to was as follows: “That the defendant as a reasonable man ought to have seen that the plaintiff's car was in a skid immediately after plaintiff's car hit the mound of ice and skidded to the left as described in the court's finding”.

The plaintiff's position is, in substance, that the above-quoted finding of lack of negligence on the part of the defendant and the judgment in the latter's favor is based on the defendant's conduct after he saw that the plaintiff's car was skidding rather than as of the time when he ought to have seen the skidding. The plaintiff says the defendant, in the exercise of reasonable care, ought to have seen that the other car was out of control immediately after it hit the mound of ice, or, in any event sooner than 3 seconds before the collision. The plaintiff...