Cross v. Patch's Estate

• Decision Date: 07 November 1961
• Docket Number: No. 1203,1203
• Citation: 123 Vt. 11,178 A.2d 393
• Parties: Wellington CROSS v. ESTATE of Osro H. PATCH.
• Court: Vermont Supreme Court

Page 393

178 A.2d 393

123 Vt. 11

Wellington CROSS v. ESTATE of Osro H. PATCH.

No. 1203.

Supreme Court of Vermont.

Nov. 7, 1961.

Reargument Denied March 7, 1962.

Finn & Davis, Barre, for plaintiff.

Black & Plante, White River Junction (Raffaele M. Terino, White River Junction, on the brief), for defendant.

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

HULBURD, Chief Justice.

In April 1955, at about 8:00 P.M., the plaintiff was injured when the 1949 Dodge automobile in which he was riding as a passenger collided successively with two guardrail posts and a cement bridge abutment. The defendant's intestate was the owner and operator of the automobile at the time of the accident. He died suddenly five days later at the Rutland Hospital as a result of it. The plaintiff has brought his action against the defendant estate pursuant to 23 V.S.A. § 1491 to recover the damages arising from the injuries he sustained in the accident.

On the evening in question, the plaintiff and his host were proceeding in a generally westerly direction toward Rutland on U. S. Route #4 near the town of Sherburne. This is a macadam-surfaced highway with a painted white center line. There was no ice or snow on the road. The weather was fair. Mr. Patch's automobile was in good condition with properly functioning lights and brakes. The tires on his automobile were 'in very good shape.' Mr. Patch was very familiar with the road and had travelled over it many times as a year for several years prior to the accident. He was a man sixty-two years of age, in good general health, who wore glasses only when reading.

Photographs, introduced in evidence, show the highway leading to the bridge where the accident occurred. They disclose the manner in which the road takes a curve to the left as one approaches the bridge in the direction in which Patch was travelling. Surveys introduced in evidence, prepared by an engineer, furnish the precise mathematical details in this regard. The width of the road in the area of the accident was 16 feet. The degree of curvature of the curve situated just easterly of the bridge where the accident occurred is 18 - 53' in a distance of 100 feet. The subelevation or banking of the curve is also shown on the surveys. Sub-elevation is the difference in elevation from the low side of the curve to the high side of the curve. For a vehicle proceeding in the direction in which the Patch vehicle was operating, the high side of the curve is to the right of the operator and the low side to his left. The difference from the low side of the curve to the high side of the curve in the area of the accident was 20 inches.

It was explained by the engineer testifying that the degree of curvature and the amount of sub-elevation, or banking, determines the speed at which a vehicle may safely travel around the curve without being affected by centrifugal force. Ordinarily, when a vehicle is passing around the curve, the centripetal force (arising from certain specified factors) tends to balance the centrifugal force. He went on to give his opinion that as a matter of established physical law, it would not be possible for a vehicle proceeding as the Patch vehicle was proceeding around the curve in question to do so at a speed greater than 34 miles per hour without being seriously affected by centrifugal force and being pulled off to the right side of the road. This fact was corroborated by the testimony of a second highway engineer. Both the engineers testified that there may be other variables which could enter into the formula upon which they based their opinions, such as the weight of the particular vehicle, its width, that is the distance between its wheels, the method of steering, and 'the human factor.' But using 'average conditions, average drivers, average roadways, vehicles, surfaces and the like,' they testified that based on this formula and the measurements shown by the survey it was their opinion that the curve in question was designed for a maximum speed of thirty-four miles an hour.

The physical evidence tended to show that as the vehicle was being operated in a westerly direction along Route #4, and approaching the bridge, it was driven off the right-hand side of the road and continued off the road in a westerly direction a distance of about 100 feet, first colliding with two wooden guard posts, and then striking its right front with the bridge abutment on the right side of the bridge.

The violence of the impact was such that the plaintiff, who was riding in the front seat at the driver's right, was pinned by the frontboard which had been forced back against him. This in turn was due to the fact that in the collision the engine in the car had been pushed back into the frontboard and the front part of the car. The plaintiff was still unextricated from his position in the automobile when state police officer Jenne arrived on the scene about a quarter of an hour later. He testified that at this time, the driver, Mr. Patch, was standing in the road near his automobile. The officer questioned him about the accident. Mr. Patch told him that he didn't know how the accident happened and that he thought he was travelling about 40 miles an hour when the collision occurred. He also stated that his lights were all right, but aside from this much, officer Jenne testified, 'I couldn't get any information from him as to the cause of the accident, and he refused any medical attention for his injuries,--refused to go to the hospital and was very uncooperative. There was a strong smell of liquor on his breath and he appeared to be dazed.'

In his investigation, officer Jenne stated that he recalled a rut or wheel track approximately six to twelve inches off the paved surface of the highway, on the right hand side of the road as the car was travelling, extending back easterly from the wrecked vehicle 75 or 100 feet. He did nor photograph or take any measurement of these marks. The only photograph taken at the scene was of the automobile itself. This photograph did not show the highway over which the auto had just come before it came to rest. Other photographs in evidence supplying this information were taken at a much later date.

We come now to the plaintiff's first assignment of error. One of the witnesses for the plaintiff was Andrew Monti. He testified that he was a lieutenant in the Vermont State Police and had been a member of that force ever since its inception in 1949; that prior to that time he had been employed by the state motor vehicle department so that his total employment with the two organizations amounted to seventeen years; that for the past five years his duties have been as Superintendent of Identification and Records, Training and Public Information of the State Police; that it is a part of his duties to review accident reports and compile statistical data; that for approximately ten years prior to his present position, he had investigated automobile accidents, and that even after he started to act in his present capacity, he continued to make some investigations; that altogether he had examined about twenty thousand accident reports and that he had investigated personally between three and four thousand accidents; that he had examined from six to seven thousand photographs of accidents; that of the accidents which he had personally investigated, about one thousand to fifteen hundred, were one-car accidents, in which the vehicle was in collision with an immovable object; that about fifteen hundred to eighteen hundred of the cases handled by him statistically were cases involving a vehicle with an immovable object; that in this connection he had compared the reported speed of the vehicle involved with the extent of the damage which had occurred; that he has made studies as to the relationship of injuries and damage resulting from automobiles striking immovable objects, in association with studies that are being conducted by the Cornell University Research in the field of automobile collisions; that in general he had assimilated and compared the data obtained by him with reference...