Dawley v. Nelson

• Decision Date: 01 February 1949
• Docket Number: 1222
• Citation: 63 A.2d 866,115 Vt. 461
• Parties: MABEL A. DAWLEY'S ADMR. v. HARLEY NELSON
• Court: Vermont Supreme Court

63 A.2d 866

115 Vt. 461

MABEL A. DAWLEY'S ADMR. v. HARLEY NELSON

No. 1222

Supreme Court of Vermont

February 1, 1949

January Term, 1949.

Negligence in Operation of Motor Vehicle.

1. Upon a trial by jury the court, although not previously requested is required to instruct the jury upon every essential part of the case and an exception taken to the failure to charge as to such matters is well taken.

2. Where there is a motor vehicle accident involving a motor vehicle and a pedestrian upon a crosswalk at intersecting streets with a stop light, the court should charge the jury specifically as to the rights and duties of the operator and of the pedestrian in such circumstances.

3. The sudden emergency rule may not be invoked by one who has created the emergency by his own negligence and fault.

4. In an automobile negligence case one of the tests of negligence is the failure of the driver to stop quickly and easily and to have his car under control at all times.

TORT based upon negligence in operation of motor vehicle. Trial by jury, Windsor County Court, June Term, 1947, Hughes, J presiding. Verdict and judgment for the defendant.

Judgment reversed and cause remanded.

Bloomer & Bloomer for the plaintiff.

Raymond Trainor, Alban J. Parker and Palmer D Ainsworth for the defendant.

Present: SHERBURNE, JEFFORDS and CLEARY, JJ., and ADAMS, Supr. J.

OPINION

CLEARY

This is an action of tort for negligence brought by the administrator of the estate of Mabel A. Dawley, because of the latter's death from injuries sustained on October 31 1944, when she came in contact with an automobile operated by the defendant. Trial was by jury with a verdict for the defendant. The plaintiff briefs several exceptions to the failure of the court to charge and to the overruling of his motion to set aside the verdict and for a new trial.

The accident happened at the intersection of Main and Depot Streets in the village of Ludlow, about 8:00 o'clock in the evening, while the plaintiff's intestate was crossing the street. There was a stoplight and a crosswalk with painted lines at the intersection. The evidence as to the spot where the accident happened was conflicting, that of the plaintiff tending to prove that the plaintiff's intestate was on the crosswalk and that of the defendant tending to prove that the plaintiff's intestate was a few feet south of the crosswalk. The plaintiff's declaration alleged that the defendant was negligent in failing to approach and enter the street intersection slowly and with due care to avoid accident, in failing to keep a lookout for pedestrians and in failing to have his automobile under control.

The plaintiff duly excepted to the failure of the court to charge the jury relative to the rights of the pedestrian and the driver of an automobile at an intersection.

The court put these questions in its charge to the jury, "Was the defendant negligent in driving into that intersection, across the intersection and across the sidewalk? Did he keep a lookout for the people crossing? Did the defendant drive his car at excessive speed, or did he drive it against the light, or did he fail to keep a lookout for the other people using the crosswalk, or approximately the crosswalk on the occasion in question?" But the court gave the jurors no help to aid or guide them in answering the questions, other than the general instructions that a pedestrian and an automobile driver have equal and reciprocal rights in the use of the highway, that each is bound to exercise due care, the care that a prudent man would exercise in the same circumstances. This was not enough. The court, although not previously requested, was required to instruct the jury upon every essential part of the case and an exception to the failure to charge as to such matters is well taken. Clark v. Demars, 102 Vt. 147, 151, 146 A. 812; Morse v. Ward, 102 Vt. 433, 436, 150 A. 132; Bennett v. Robertson, 107 Vt. 202, 211, 177 A. 625, 98 ALR 152. See also Estate of Delligan, 111 Vt. 227, 239, 13 A.2d 282; French v. Nelson, 111 Vt. 386, 393, 17 A.2d 323; Watterlund v. Billings et al., 112 Vt. 256, 261, 23 A.2d 540; Mullett v. Milkey, 113 Vt. 42, 48, 29 A.2d 806.

The jury should have been specifically instructed regarding the rights and duties not only of the defendant but also of the plaintiff's intestate as travelers on a highway and particularly with respect to a crosswalk at intersecting streets with a stop light. Howley v. Kantor, 105 Vt. 128, 131, 163 A. 628; Eagan v. Douglas, 107 Vt. 10, 15, 16, 17, 175 A. 222; Duchaine v. Ray, 110 Vt. 313, 319, 6 A.2d 28; Colburn v. Frost, 111 Vt. 17, 21, 22, 23, 9 A.2d 104; Izor v. Brigham, 111 Vt. 438, 443, 17 A.2d 236; McKirryher v. Yager, 112 Vt. 336, 343, 344, 24 A.2d 331.

The plaintiff also excepted to the Court's charge and the failure of the Court to charge with reference to brakes. The plaintiff's evidence tended to prove that the defendant drove through the intersection with the stoplight showing red against him at a speed of twenty-five to thirty miles an hour; the defendant's evidence tended to prove that he stopped for the light, waited until it turned green in his favor, proceeded in low gear at two miles...