Campbell v. Beede

• Decision Date: 02 February 1965
• Docket Number: No. 868,868
• Parties: Daniel A. CAMPBELL v. Carroll BEEDE.
• Court: Vermont Supreme Court

Page 236

207 A.2d 236

124 Vt. 434

Daniel A. CAMPBELL v. Carroll BEEDE.

No. 868.

Supreme Court of Vermont.

Feb. 2, 1965.

Wilson & Keyser, Chelsea, for plaintiff.

Davis, Martin & Free, Barre, for defendant.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and HILL, Superior Judge.

SMITH, Justice.

This is an action of tort brought by the plaintiff, Daniel A. Campbell, against the defendant, Carroll Beede, as the result of a collision between a motor vehicle owned and operated by the plaintiff, and one owned and operated by the defendant, in the Town of Washington, on September 13, 1961.

A jury trial before the Washington, County Court terminated in a verdict for the plaintiff in the amount of $750.00. After verdict and before judgment, the defendant moved for judgment in his favor notwithstanding the verdict, and upon denial by the court of this motion, moved the court to grant him a new trial on all issues. The plaintiff moved the court to grant a new trial to him on the issue of damages only. The court denied the motions of the defendant and granted the motion of the plaintiff.

The defendant has taken his appeal here on the denial of the motions made by him in the lower court, the granting of the motion of the plaintiff for a new trial on damages only, and from certain instructions given to the jury by the lower court in the trial below.

The first claim of error made here by the defendant is that the evidence below proved the plaintiff guilty of contributory negligence as a matter of law and that his motion for a judgment in his favor notwithstanding the verdict was wrongfully denied. A motion for judgment notwithstanding the verdict is tantamount to a motion for a directed verdict and is to be passed upon in the same way. Sawyer v. Ewen, 122 Vt. 320, 322, 173 A.2d 549. The evidence must be taken in the light most favorable to the plaintiff and the effect of modifying evidence is to be excluded. Cheney v. Wheeler, 122 Vt. 295, 297, 170 A.2d 642; Austin v. Bunday, 122 Vt. 111, 165 A.2d 236. The evidence, so viewed, presents the following factual situation relative to the collision between the parties. The plaintiff was travelling along the highway from his place of employment in Barre, to his home in Chellsea, on the night of September 13, 1961. He entered the Town of Washington a little after 11 P.M. travelling at a speed of 40-45 miles per hour.

As he came over a slight rise in the highway he saw headlights facing in his direction in the opposite lane of the highway on which he was travelling, about 250 feet away. He let up on the throttle, flicked his headlights, and continued on his course.

The headlights that plaintiff saw were on the vehicle of the defendant. The defendant, having left a friend at the friend's house, had backed out on to the highway, which was curved at that point, brought his car to a stop before proceeding back toward Barre. Defendant's vehicle was in a diagonal position on the curve in the highway so that while his headlights shone down his own lane of travel, a part of his vehicle was actually across the lane being travelled by the plaintiff, in a diagonal position.

The plaintiff, coming out of a slight dip in the road as he more closely approached the vehicle of the defendant, did not see that part of the defendant's vehicle obstructing his lane of travel until he had passed the glare of the defendant's headlights and was within ten feet of the protruding vehicle. In attempting to pass the defendant's vehicle, he collided both with that vehicle and a bridge abutment located on his right side of the road and opposite the vehicle of the defendant.

Defendants claim that plaintiff was contributorily negligent as a matter of law is based upon: (1) that the plaintiff was exceeding the legal speed limit of 35 miles per hour in the Town of Washington; and (2) plaintiff's failure to observe the position of defendant vehicle in the highway until such a time that he could not stop his car and avoid the collision. Excessive speed, alone, is not negligence as a matter of law. The question of whether plaintiff was driving his vehicle at such an excessive rate of speed as to constitute negligence was one of fact for the jury. Sulham v. Bernasconi, 106 Vt. 192, 198-199, 170 A. 913.

The safety statutes provide that one driving an automobile along the highway in the dark must drive at such a speed that he can stop it within the range of its headlights; and there is a duty at all times imposed upon the operator of a motor vehicle to maintain a lookout for persons and property on the highway, and to use reasonable care to avoid inflicting injuries on such persons or property; and he is chargeable with knowledge of objects on the highway which are in plain view. Hastings v. Soule, 118 Vt. 105, 108, 100 A.2d 577; Kennedy v. Laramee, 115 Vt. 358, 362, 61 A.2d 547.

While the violation of safety statutes makes out a prima facie case of negligence, it is a rebuttable presumption, and the question of whether such violations are the proximate cause of an accident is a jury question. Smith v. Blow and Cote, Inc., 124 Vt. 64, 67, 196 A.2d 489.

The evidence before the jury was that the plaintiff observed the headlights of the defendant's car 250 feet away from the point of collision. Due to the defendant's act in backing the car onto a curve in the highway, the headlights appeared to be in the opposite lane from the one in which the plaintiff was travelling. That part of defendant's vehicle which obstructed the traffic lane on which plaintiff was travelling was obscured to his vision by the glare of the headlights on defendant's vehicle until he was almost upon it.

The jury might well have found that the plaintiff was here confronted with circumstances that...