Colburn v. Frost
| Decision Date | 07 November 1939 |
| Docket Number | No. 1056.,1056. |
| Citation | 9 A.2d 104 |
| Parties | COLBURN v. FROST. |
| Court | Vermont Supreme Court |
Exceptions from Rutland County Court; Charles B. Adams, Judge.
Action by Irving W. Colburn against Robert L. Frost for personal injuries sustained in an automobile accident. Defendant's motion for directed verdict was granted, and plaintiff brings exceptions.
Reversed and remanded.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT. and JEFFORDS, JJ.
Stanley L. Burns and Lindley S. Squires, both of Rutland, for plaintiff.
Thomas F. Mangan and James E. Bigelow, both of Rutland, for defendant.
At about seven: thirty on the evening of November 3, 1938, the plaintiff and his wife were walking easterly on the north side of West Street, one of the principal business thoroughfares of the City of Rutland. The plaintiff was wearing a light colored overcoat. When about in the middle of the block made by the intersection of Cottage Street to the west and Wales to the east they decided to cross the street in order to reach the church to which they were going, which is located on the south side of West Street and easterly of Wales Street. At the time there were cars parked on the north side of West Street but none on the south side.
They stepped off from the curb and went out to the rear of one of the parked cars where a clear view of the street to the east and the west could be had. They waited there until some cars coming from the east had passed. The plaintiff then looked to the east and saw that there were no cars approaching from that direction. He then looked to the west and saw the lights of defendant's car. After some talk between them they started diagonally across the street, the plaintiff walking to the right of his wife. The street at this point was from 30 to 36 feet wide and the place of crossing was not at a designated cross walk. The course that they took was one a little diagonally to the east. The plaintiff testified that they hustled across the street. Although he was 82 years old it is apparent that the plaintiff was rather spry on his feet as he was engaged in the business of giving boxing lessons up to the time of the accident. After starting to cross, neither the plaintiff nor his wife looked to the east or west. When they were within 6 or 7 feet of the south curb the plaintiff was struck by defendant's car and received personal injuries and brought this action in tort to recover compensation for the same.
No horn was blown nor any warning signal given as the defendant testified that he did not see plaintiff until the time of impact. The plaintiff was struck by the left front fender of the car and when the car was stopped he was lying opposite the left front wheel. No evidence was introduced as to the rate of speed of the car as it approached the scene of the accident, nor as to what distance, if any, the plaintiff was dragged by the car before it was brought to a stop.
The mental processes of the plaintiff are shown by the following evidence, all introduced without objection. When the two were standing at the rear of the parked car and after having looked to the east and the west the plaintiff testified that he said to his wife: "We got plenty of time; she said 'there is a light', I said 'yes'; as near as we could locate it it was about the Outlet store or possibly the picture house; of course I couldn't tell, but we supposed we had ample time to cross." He also testified to the effect that in crossing when he did he "thought I was using precaution"; that when he started to cross the street he "thought it was safe or I would never have started." In answer to a question on cross examination: "And you didn't look again?" he replied, "No, sir; I thought it was safe."
The court questioned him as follows:
Mrs. Colburn testified as follows:
The foregoing summary is based on evidence which was undisputed. The only variance as to any material fact relates to the distance of the car from the plaintiff when he started to cross the street. The plaintiff testified that it was beyond Cottage Street and near the Outlet store or the theatre. No evidence was introduced as to the distance of either of these buildings from Cottage Street. He also testified that he thought it was from 200 to 250 feet away but said that this was only a rough guess. The defendant testified in effect that the accident happened about in the middle of the block, and from the point of collision to Wales Street he should say was three or four hundred feet.
At the close of plaintiff's case the defendant moved for a directed verdict on the grounds, in substance, (1) that the evidence did not show any actionable negligence on the part of the defendant, and (2) that the evidence showed contributory negligence on the part of the plaintiff. This motion was granted and the case comes here on exceptions of the plaintiff.
Although not so stated, it is apparent from the transcript that the motion was granted on the second ground only, and it seems that it must have been for the evidence tended to show that the defendant was negligent if not reckless in one or more respects alleged by the plaintiff in his complaint. So we give no further consideration to the first ground and pass to the second.
The burden was upon the plaintiff to show his freedom from contributory negligence, Farrell v. Greene, 110 Vt. 87, 2 A.2d 194, but in considering this motion the evidence must be taken in the light most favorable to the plaintiff, Farrell v. Greene, supra.
Since there was no regular cross walk at the point where the accident happened, the plaintiff attempting to cross there was required to exercise greater vigilance than if he had crossed at an established crossing. Eagan v. Douglas, 107 Vt. 10, 15, 175 A. 222; Howley v. Kantor, 105 Vt. 128, 131, 163 A. 628.
But we have held in cases where the accidents happened at places other than cross walks that the law does not say how often a pedestrian about to cross a street must look or precisely how far or when or from where. He is simply required to exercise for his own safety the measure of care that a prudent man would exercise in the same circumstances. But as circumstances vary so do the practical requirements of the rule vary. The circumstances and dangers are always to be taken into account in determining what is due care or the evidence of it. Duchaine v. Ray, 110 Vt. 313, 319, 6 A.2d 28; Eagan v. Douglas, supra; Aiken v. Metcalf, 90 Vt. 196, 199, 97 A. 669. In our cities and villages due care requires a pedestrian in all cases to look for traffic before starting to cross a main traveled street between intersections, or to look at such time and place as will reasonably be of some benefit in protecting him and giving him knowledge of the condition of traffic. Duchaine v. Ray, supra; Eagan v. Douglas, supra.
The plaintiff was not obliged to use constant vigilance and he...
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