Conway v. O'BRIEN, 287.

Decision Date29 April 1940
Docket NumberNo. 287.,287.
Citation111 F.2d 611
PartiesCONWAY v. O'BRIEN.
CourtU.S. Court of Appeals — Second Circuit

Fenton, Wing & Morse and Walter S. Fenton, all of Rutland, Vt., for appellant.

Herbert G. Barber and Fenton E. Batton, both of Brattleboro, Vt., for appellee.

Before L. HAND, AUGUSTUS N. HAND, and PATTERSON, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment entered upon a verdict, holding the defendant, O'Brien, liable for a collision between a motor car which he was driving and another car, driven by one Wilson, upon a little travelled country road in Vermont. The plaintiff was a passenger in O'Brien's car, and her right of action for injuries depends upon the "Guest-Occupant" law of Vermont (Public Laws of Vermont § 5113), by which the operator of a motor is not liable for injuries to "any occupant of the same" unless the operator receives pay for carrying the occupant, "or unless such injuries are caused by the gross or wilful negligence of the operator". The only point we shall consider is whether the evidence of the defendant's "gross * * * negligence" was enough to support a verdict. The collision happened just south of a covered bridge crossing a small river running east and west; O'Brien was going north, Wilson south, and the cars came together about twenty feet beyond the south end of the bridge. The jury was justified in finding that O'Brien had been clear over on the west side of the road, until he saw Wilson's car come out from the bridge. Coming from the south the road runs almost east for some distance, and then turns on a radius of about sixty feet through an angle of about 70° to enter the bridge. The road is seventeen feet wide at the widest part of the turn and fourteen to fifteen elsewhere, and is protected by a fence because the ground slopes off sharply to the east. There is a down grade of about nine degrees approaching the bridge from the south, and the view to the left is somewhat obstructed until one gets fairly on the turn. O'Brien's car was going at only fifteen miles an hour (as to this there was curiously enough no dispute) but he did not blow his horn, or do anything to avoid collision until he saw Wilson emerge, when he swung sharply to the right so that the collision was between the left fore wheels of each car. Wilson swore that he was moving at two miles an hour, and that he blew a horn before entering the bridge. Any such speed is of course incredible, but the issue is not important, as his speed does not count in determining O'Brien's negligence. Only five or six families lived on the road, and the wheel tracks at the turn showed that it had been the custom to take it on the left side in order to make the turn more easily.

The degree of care demanded of a person by an occasion is the resultant of three factors: the likelihood that his conduct will injure others, taken with the seriousness of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk. All these are practically not susceptible of any quantitative estimate, and the second two are generally not so, even theoretically. For this reason a solution always involves some preference, or choice between incommensurables, and it is consigned to a jury because their decision is thought most likely to accord with commonly accepted standards, real or fancied. A statute like that before us presupposes that the answer to the general question has been against the defendant (that is, that his conduct has been inexcusable) but it imposes upon his liability a condition which cannot even be described in quantitative terms; not only must the interest which he would have had to sacrifice be less than the risk to which he subjects others, but it must so far fail to match that risk that some opprobrium or reproach attaches to him. In Powers v. Wilson, 2 Cir., 110 F.2d 960, we had this statute before us, and thought this the most satisfactory approach to the solution of a problem, essentially self-contradictory, since it professes to set a quantitative standard for the measurement of incommensurable factors. The leading case in Vermont is Shaw v. Moore, 104 Vt. 529, 162 A. 373, 374, 86 A.L.R. 1139, the opinion in which has been often cited; the definition there given contains such descriptive phrases as "more culpable than ordinary negligence", "utter forgetfulness of legal obligations"; "heedless and palpable violation * * * respecting the rights of others"; "short of...

To continue reading

Request your trial
55 cases
  • Spear v. Fenkell, CIVIL ACTION NO. 13-2391
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 30, 2016
    ...measure a decision here will involve the weighing of incommensurables, a task generally better suited to trial. Cf. Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir. 1940), rev'd, 312 U.S. 492 (1941) (After observing the difficulty of weighing incommensurables, and the ordinary practice of leav......
  • Keller v. Brooklyn Bus Corporation
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 27, 1942
    ...S.Ct. 637, 638, 85 L.Ed. 945, reversing 2 Cir., 111 F.2d 615; Conway v. O'Brien, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969, reversing 2 Cir., 111 F.2d 611; Gunning v. Cooley, 281 U.S. 90, 95, 50 S.Ct. 231, 74 L.Ed. 720; Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 8......
  • Merrill v. Navegar, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • September 29, 1999
    ...real or fancied.'" (3 Harper, James & Gray, The Law of Torts, supra, § 16.10 at pp. 482-483, quoting Learned Hand in Conway v. O'Brien (2d Cir.1940) 111 F.2d 611, 612, revd. on other grounds (1941) 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969; accord, Prosser & Keeton, Torts, supra, § 37, p. 23......
  • Graf v. Elgin, Joliet and Eastern Ry. Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 7, 1983
    ...duty is negligence, or if the cost of performing it would be much less than the expected benefits gross negligence, Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir.1940), rev'd on other grounds, 312 U.S. 492, 61 S.Ct. 634, 85 L.Ed. 969 (1941); and Evans' action was one or the other. But he was......
  • Request a trial to view additional results
4 books & journal articles
  • Negligence Without Harm
    • United States
    • Georgetown Law Journal No. 111-2, December 2022
    • December 1, 2022
    ...Judge Hand repeated this formulation in other cases. See, e.g. , Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. 1949); Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir. 1940); Gunnarson v. Robert Jacob, Inc., 94 F.2d 170, 172 (2d Cir. 1938). 2022] NEGLIGENCE WITHOUT HARM 215 in (not the eliminati......
  • Design defects.
    • United States
    • Missouri Law Review Vol. 73 No. 2, March - March 2008
    • March 22, 2008
    ...minimal precautions to reduce such risks. (96.) 159 F.2d 169, 173 (2d Cir. 1947). Hand first employed this approach in Conway v. O'Brien, 111 F.2d 611 (2d Cir. 1940), rev'd on other grounds, 312 U.S. 492 (1941), and subsequently reexamined it in Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. ......
  • ON REASONABLENESS: THE MANY MEANINGS OF LAW'S MOST UBIQUITOUS CONCEPT.
    • United States
    • Journal of Appellate Practice and Process Vol. 21 No. 1, January 2021
    • January 1, 2021
    ...care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances."). (323.) 111 F.2d 611 (2d Cir. (324.) Id. at 612. Without commenting on Judge Hand's formulation, the Supreme Court reversed his decision, believing the applicabl......
  • Marco Jimenez, Remedial Consilience
    • United States
    • Emory University School of Law Emory Law Journal No. 62-5, 2013
    • Invalid date
    ...of the injury if it happens, and balanced against the interest which he must sacrifice to avoid the risk.” (quoting Conway v. O’Brien, 111 F.2d 611, 612 (2d Cir. 1940), rev’d, 312 U.S. 492 (1941)) (internal quotation marks omitted)).Richard A. Posner, An Economic Theory of the Criminal Law,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT