Ellison v. Colby

• Decision Date: 03 October 1939
• Docket Number: No. 1278.,1278.
• Citation: 8 A.2d 637
• Parties: ELLISON v. COLBY.
• Court: Vermont Supreme Court

8 A.2d 637

ELLISON

v. COLBY.

No. 1278.

Supreme Court of Vermont. Windsor.

Oct. 3, 1939.

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

Action by Shirley Ellison, by next friend, against Earl Colby for damages for personal injuries alleged to have been suffered by plaintiff in an automobile accident. Verdict and judgment for plaintiff, and defendant brings exceptions.

Affirmed.

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

Daniel Kesman, of Ludlow, and Asa S. Bloomer, of Rutland, for plaintiff.

Loren R. Pierce, of Woodstock, for defendant.

BUTTLES, Justice.

In this tort action the plaintiff seeks damages for personal injuries suffered by her in an automobile accident which occurred at the easterly end of a bridge situated about two miles westerly from Chester on the road to Rawsonville via Simonsville, at about 1:30 A. M. on October 10, 1938. The plaintiff was a guest passenger in the two seated 1929 Buick sedan driven and controlled by the defendant. The car weighed about 4,235 pounds. There were three persons on the front seat, the plaintiff being in the middle. The rear seat was unoccupied. The defendant had driven over the same route in the opposite direction early in the evening, with the same passengers, leaving Chester at 6:30 to 7 P. M. and arriving at this bridge after it was so dark that the lights of the car had been turned on. The injuries of which the plaintiff complains resulted from the car's leaving the road, on the return trip, and going down an embankment at a point a few feet easterly of the bridge. Trial was by jury resulting in verdict and judgment for the plaintiff, and the case comes to this Court on defendant's exceptions.

Exceptions taken to the overruling of defendant's motions for a directed verdict and to his motion to set aside the verdict as being contrary to the law as given to the jury by the court's instructions are briefed together and are based upon the claim that the plaintiff failed to prove gross negligence. Such proof was of course necessary, since it is admittedly a case coming within the provisions of P.L. 5113, and only gross negligence is alleged by the plaintiff in her declaration.

From the evidence taken in the light most favorable for the plaintiff, it appears that the distance from Chester to the scene of the accident is about two miles, and from there to Simonsville is about four miles. Most of the road from Chester to Simonsville was under construction and repair. Every bridge on the road, of which there were several, was washed out at one end or the other. The defendant had been over that road possibly four times in his life, but he was familiar with the situation in that section and realized when he got down there that there had been a flood and that the road was under construction and repair. The party had been obliged to detour a part of the way going over and returning because of the bad condition of the road left by the flood.

There had been a big washout at the east end of the bridge where the accident occurred. It was ten to seventeen feet deep at the end of the bridge and extended forty to sixty rods from the bridge at a decreasing depth. This had been repaired by filling in with soft dirt or sand over which a roadway about nine feet wide had been passable for four or five days. The traveled portion of this roadway had been packed reasonably hard by the dual wheels of the trucks which had dumped in the sand. There was nothing to prevent cars from going off the sides of the fill at the approach to the bridge except a bank or ridge of the material used for fill which had been pushed up on each side. This ridge or bank was about two feet high by three feet wide at the place of the accident. The traveled roadway extended from about the middle of the bridge, so that if a car was driven to the right of the middle of the bridge the right wheels would not enter the roadway but would strike into the soft material at the side. There was "something of a curve" to the left in the road at the easterly end of the bridge. Between this bridge and the next one to the west, perhaps one fourth of a mile distant, the road was hard surfaced or black top. There were no washouts in this strip of road and there was a white line in the middle for several rods westerly from the bridge where the accident happened.

There were flares on the road, one of which was east of the bridge near the easterly end of the washout. There was no evidence of flares west of the bridge nearer than Bemis' bridge about two miles away. There was evidence that there were danger signals at both ends "down away from the bridge, below it, so. as to give anyone ample chance."

After the defendant's car crossed the bridge the right wheels struck the soft dirt. The car swerved to the right and going into the ridge or bank of sand plowed off the highest part of it for a distance of twelve or fifteen feet, then went down the embankment and tipped over onto its top, landing about forty-three feet from where it broke through the ridge. The damage to the car was slight, the windshield and one door glass being broken, the hood jammed and the top "punched full of holes." The driver had been cautioned to slow down once or twice on the way over by the other passenger but not by the plaintiff, who thought this cautioning sufficient. She had no fault to find with his driving until they came to the black top road between the bridges on the return trip. He then increased his speed, according to the testimony of the plaintiff, to around a rate of fifty miles per hour and...