Burleson v. Caledonia Sand & Gravel Co., 1944

Decision Date03 June 1969
Docket NumberNo. 1944,1944
Citation255 A.2d 680,127 Vt. 594
CourtVermont Supreme Court
PartiesHerman BURLESON v. CALEDONIA SAND & GRAVEL CO. Inc.

M. Martin Leinwohl, Barre, for plaintiff.

Downs & Rachlin, St. Johnsbury, for defendant.

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

SMITH, Justice.

This is an action of tort tried before the Washington County Court by jury trial, on April 17, 1968. At the close of the plaintiff's evidence, the defendant's motion for a directed verdict in its favor was granted by the trial court. The appeal here is from the claimed error on the part of the lower court in granting the motion for the directed verdict.

A review of the evidence, taken in the light most favorable to the plaintiff, in the trial below is necessary for our determination of the questions presented. If there is any substantial evidence fairly and reasonably tending to support the plaintiff's claim, the question is for the jury. Lewis v. Vermont Gas Corp., 121 Vt. 168, 151 A.2d 297.

The evidence in the trial below was confined to that given by the plaintiff, the driver of the car in which he was injured, and the single passenger who accompanied him, plus exhibits admitted by the court, and is relatively uncomplicated.

On October 3, 1964, the plaintiff was the driver of a motor vehicle proceeding along Route 302 in the Town of Newbury. The car being driven by the plaintiff was not owned by him and he was unfamiliar with its operation. Plaintiff's own account of the accident may be best summarized in his own words found in his report of the accident, submitted to the Commissioner of Motor Vehicles, and received as an exhibit offered by the plaintiff in the trial below:

'I was on my way home from Wells River, Vt. when I took my eyes off the road for a second to close the air vent. It was a strange car to me and it had power steering on it which I wasn't used to. When I looked up I was close to the guardrails. There was some loose cable from the guardrails and it caught my bumper and caused the car to roll over.'

Plaintiff stated in his direct testimony that he never saw the wire which he claims to have been the cause of the accident until he found it entangled with his car after the accident occurred.

The passenger in the car driven by the plaintiff, Harvey Hatch, testified that he also took his eyes off the road for a short time to help Burleson locate the vent, which Burleson was attempting to close to prevent dirt and dust being blown about the car. As Hatch returned his gaze to the road, after locating the vent, he saw the wire or cable in the road, and so stated to the driver. The cable that he perceived extended from the guard rail some three or four feet toward the center line of the highway. The accident occurred almost immediately after Hatch's warning to the driver.

The motion of the defendant for a verdict to be directed in its favor was based upon two grounds. The first ground was that the plaintiff failed to show that defendant's acts or omissions bore any relationship to plaintiff's accident, and the second ground was that plaintiff was guilty or contributory negligence as a matter of law. The lower court in granting the motion of the defendant did not indicate whether such motion was granted upon one or the other of the grounds advanced, or upon both of them. Our rule in such instances is that if the ruling can be sustained upon any one of the grounds, the judgment must be affirmed. Belock et al. v. State Mut. Fire Ins. Co., 106 Vt. 435, 440, 175 A. 19.

The burden of showing that the defendant was guilty of some negligent act or omission that proximately caused the accident was on the plaintiff. Fuller v. City of Rutland, 122 Vt. 284, 288-289, 171 A.2d 58. The evidence offered by the plaintiff to show the connection between this defendant and the cable in the road, alleged to be the cause of the accident and consequent injury can be stated briefly.

The passenger in the car driven by the plaintiff, Harvey Hatch, testified that he had seen trucks bearing the name of Caledonia Sand and Gravel travelling upon U. S. Route 302 to a gravel pit, located across...

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7 cases
  • Brueckner v. Norwich University
    • United States
    • United States State Supreme Court of Vermont
    • 5 Febrero 1999
    ...in the report is triple hearsay and amounts to "conjecture, surmise or suspicion," (quoting Burleson v. Caledonia Sand & Gravel Co., 127 Vt. 594, 597, 255 A.2d 680, 682 (1969)), which is inadequate as a matter of law to support the jury's There is no absolute prohibition against the use of ......
  • South Burlington School Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc.
    • United States
    • United States State Supreme Court of Vermont
    • 16 Enero 1980
    ...and reasonably tends to support the plaintiff's claim, the case should go to the jury for resolution. Burleson v. Caledonia Sand & Gravel Co., 127 Vt. 594, 594, 255 A.2d 680, 681 (1969); Hedman v. Siegriest, 127 Vt. 291, 293, 248 A.2d 685, 686 (1968). Moreover, in determining whether there ......
  • Larmay v. VanEtten
    • United States
    • United States State Supreme Court of Vermont
    • 1 Junio 1971
    ...of some negligent act or omission that proximately caused the accident was, of course, on the plaintiff. Burleson v. Caledonia Sand & Gravel Co., 127 Vt. 594, 596, 255 A.2d 680. Under the rules of the road governing the conduct and operation of vehicles upon a public highway, 23 V.S.A. § 10......
  • Waite v. Brown, 31-73
    • United States
    • United States State Supreme Court of Vermont
    • 4 Diciembre 1973
    ...required submission of the case to the jury. Dindo v. Denton, 130 Vt. 98, 109-110, 287 A.2d 546 (1972); Burleson v. Caledonia Sand & Gravel Co., 127 Vt. 594, 255 A.2d 680 (1969). The plaintiff need only introduce evidence that tends to support her claim; the court cannot consider the weight......
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