Duchaine v. Ray

• Decision Date: 02 May 1939
• Docket Number: No. 370.,370.
• Citation: 6 A.2d 28
• Parties: DUCHAINE v. RAY.
• Court: Vermont Supreme Court

6 A.2d 28

DUCHAINE

v. RAY.

No. 370.

Supreme Court of Vermont. Chittenden.

May 2, 1939.

Exceptions from Chittenden County Court; Stephen S. Cushing, Judge.

Tort action by Blanche Duchaine, by next friend, against Maynard C. Ray for injuries received by plaintiff when struck by defendant's automobile. Judgment for plaintiff on a verdict in the sum of $2,250, and defendant brings exceptions.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

J. Boone Wilson, Charles F. Black, and Willsie E. Brisbin, all of Burlington, for plaintiff.

Emory C. Mower, of Burlington, for defendant.

BUTTLES, Justice.

In this tort action the plaintiff, by her next friend, seeks damages for personal injuries suffered as a result of being struck by an automobile driven by the defendant when the plaintiff, a pedestrian, had nearly completed crossing Elmwood Avenue, near its intersection with Pearl Street in the city of Burlington. Pearl Street runs east and west, or nearly so. Elmwood Avenue commences at Pearl Street and runs northerly substantially at a right angle. At or near the intersection the width of Pearl Street is about 40 1/2 feet, and of Elmwood Avenue about 35 feet. On the northeast corner of this intersection is the Unitarian church yard, and on the northwest corner is a gasoline filling station and yard which extends northerly on Elmwood Avenue for a distance estimated at 100 feet or more.

The driveway, which is referred to as the south driveway, leading into the filling station yard from Elmwood Avenue is 30 feet 3 inches wide from north to south and 9 1/2 feet in depth from the curbing to the outer edge of the sidewalk. The southerly edge of this driveway is about 9 feet northerly from the northerly line of the cross walk crossing the avenue on the northerly side of Pearl Street.

On November 12, 1937, at about 6:20 p. m. the plaintiff, on her way home from work at a Woolworth store on Church Street, walked westerly on the southerly side of Pearl Street for a distance and then crossed that street, probably diagonally, to the northeasterly or church yard corner of Pearl Street and Elmwood Avenue. Here she turned left and started to cross the avenue. In crossing she did not remain on the cross walk but at some point left the crossing and headed towards the south driveway into the filling station yard.

In the meantime the defendant drove a 1936 Buick coach easterly on the southerly side of Pearl Street from St. Paul Street, which is westerly of Elmwood Avenue, to the intersection of that avenue and Pearl Street, slowed down to ascertain whether another car coming down Pearl Street on the other side wished to precede him, and then turned left into Elmwood Avenue near the center of the intersection and in a roughly semi-circular course proceeded across the avenue and into the south driveway leading to the filling station. As the car was entering or shortly before it entered the driveway it came in contact with the plaintiff knocking her down and injuring her. She was struck across the middle of the back, apparently by the left door handle of defendant's car. Trial was had by jury with verdict and judgment for the plaintiff and the defendant comes to this Court on exceptions to the overruling of his motion to set aside the verdict, to failure of the court to charge in accordance with one request for charge, and to claimed improper and prejudicial argument of plaintiff's counsel.

Defendant has briefed his exception to the overruling of his motion solely on the claimed ground that the plaintiff was guilty of contributory negligence as a matter of law. He does not brief his exception to the failure of the court to charge in accordance with his request except to treat his argument on the overruling of his motion as covering his exception to the failure to charge also.

The defendant having briefed only the question of contributory negligence as a matter of law in support of his motion the evidence must be taken in the light most favorable to the plaintiff, since in this respect the motion is the same in nature and substance as a motion for a directed verdict. Farrell v. Greene, Vt, 2 A.2d 194, 195; Belock et al. v. State Mut. Fire Ins. Co., 106 Vt. 435, 440, 175 A. 19; Spaulding et al. v. Mutual Life Ins. Co. of New York, 94 Vt. 42, 57, 109 A. 22. So taken, the evidence shows that before starting to cross Elmwood Avenue the plaintiff stopped and looked up Pearl Street and down Pearl Street and looked up Elmwood Avenue and saw no cars coming in her direction; she then started to cross and followed the cross walk near the right line and continued to look for cars coming in all directions; when she got to about the middle or a little past she looked up Elmwood Avenue and saw no cars coming, but still continued to watch on all sides, and took a few steps more, and then cut across into the driveway still on the lookout for cars in all directions.

The evidence indicates that at the time of the accident plaintiff was at least 8 or 9 feet outside the line of the cross walk, and in that situation the vigilance and watchfulness required of her was somewhat greater than if she had remained on the cross walk. Howley v. Kantor, 105 Vt. 128, 131, 163 A. 628; Eagan v. Douglas, 107 Vt. 10, 15, 175 A. 222. It does not follow however that the plaintiff necessarily failed to exercise that degree of care that the law required. 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. Eagan v. Douglas, supra, 107 Vt. at page 15, 175 A. 222; 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 the traffic. Eagan v. Douglas, supra; Watson v. Lit Bros., 288 Pa. 175, 135 A. 631; Kalify v. Udin, 52 R.I. 191, 159 A. 644. Nevertheless this Court has said in Parker, Admr. v. Smith, 100 Vt. 130, 132, 135 A. 495, with reference to crossing a city street from east to west that after a pedestrian had passed the center of the street he had reached a point where the jury might reasonably infer that a prudent man would give his chief attention to cars approaching him from his right, in this case from the north, and relax somewhat his watchfulness for cars approaching from the other direction. Aiken v. Metcalf, supra, 90 Vt. 196, at page 200, 97 A. 669; MacDonald v. Orton, 99 Vt. 425, 429, 134 A. 599. The plaintiff had the right to assume that the defendant would not drive in a negligent manner, but she could not for that reason omit any care which the law required of her, as the rule applies only in favor of one whose own conduct measures up to the standard of due care. Farrell v. Greene, supra; Parro v. Meagher, 108 Vt. 182, 188, 184 A. 885; Eagan v. Douglas, supra, 107 Vt. at page 17, 175 A. 222; Rust v. Cody et al., 107 Vt. 326, 330, 178 A. 891.

It should be borne in mind that the defendant's car did not strike the plaintiff while approaching from the north or directly from the south nor while driving at right angles to the street into the filling station yard, but while moving in a semi-circular course from Pearl Street into Elmwood Avenue, across at least a portion of the westerly lane of traffic and into the filling station driveway. In his report to the Motor Vehicle Department, which is an exhibit in the case, the defendant states: "As I was going into gas station yard I kept turning left." There was evidence from which the jury could find that the speed of defendant's car as it came into Elmwood Avenue was 18 miles per hour (or about 26 feet per second). Under these circumstances the rule that a person will be presumed to see whatever is in line of his vision would not be applicable. If she looked at the times and in the places and in all directions, as plaintiff testified she did, she still might not have seen the car during the instant of time that its position would have indicated her peril. Nor can it be said that her failure to turn and look directly behind her during that instant indicated negligence as a matter of law. The constant vigilance rule of railroad crossings does not apply to a pedestrian crossing the highway. Eagan...