Emery v. Small, 371

Decision Date05 February 1952
Docket NumberNo. 371,371
Citation117 Vt. 138,86 A.2d 542
PartiesEMERY v. SMALL.
CourtVermont Supreme Court

Lisman & Lisman, Burlington, for plaintiff.

Austin & Edmunds, Burlington, for defendant.

Before SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ., and CHASE, Superior Judge.

SHERBURNE, Chief Justice.

The plaintiff seeks to recover for injuries received in a collision with a parked truck while riding westerly on Reverside Avenue in the city of Burlington in an automobile owned and operated by the defendant, and in which she was an invited guest passenger. The declaration alleges gross negligence, and a recovery is sought under the provisions of V.S. 47, § 10223. From a verdict and judgment for the plaintiff, defendant has excepted. The only exception briefed is to the denial of defendant's motion for a directed verdict based upon the claimed absence of any evidence of gross negligence upon the part of the defendant.

The evidence was conflicting, but viewed most favorably to the plaintiff it reasonably tended to show the following facts: The accident happened at about one o'clock in he morning of December 25, 1949. Riverside Avenue at that time was 34 feet 10 inches wide between curbs, and had a black top or macadam surface over its entire width. An unlighted two or three ton truck facing west was parked on its right or northerly side of the street six or seven inches from the curb and about 12 feet east of a point directly under a street light, by the light of which the whole of the truck could be clearly seen. On the truck's rear end were two red metal reflectors. As the defendant approached the place where the truck was parked there was a sharp right hand turn and a slight left bend in the street. He could have seen to the street light pole when 400 feet away, and there was a straightaway view of it for 289 feet and the sight to the truck was clear. The defendant was traveling well over to his right side of the street at about 30 miles per hour on low beam lights, which shone ahead perhaps 125 feet. He did not see the truck until within 12 feet of it, too late to avoid a collision. The plaintiff was riding on the right side of the front seat. She first saw the truck when between 100 and 150 feet away, and could then see it quite clearly. When she saw that the defendant was not reducing his speed or turning to avoid the truck she looked at him and observed that he was looking at her. She said 'Look out, there is a truck,' and he said 'What truck' and looked up and said 'Hold on,' and turned his car to the left. His right hand front wheel hit the left rear wheel hub cap of the truck and the top of the car was damaged around the right from side by contact with the left side of the truck body. It was a dark night, but it was not storming. There was no other car going in either direction.

It is unnecessary to repeat in full the definition of 'gross negligence' as used in the statute and defined in Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139, and subsequent cases. For the purposes of this case it is sufficient to say that it amounts to a failure to exercise even a slight degree of care, and to indifference to the duty owed a guest passenger and utter...

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11 cases
  • Hardingham v. United Counseling Service of Bennington County, Inc., 94-096
    • United States
    • Vermont Supreme Court
    • 22 December 1995
    ..." 'indifference to the duty owed [to another].' " Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (quoting Emery v. Small, 117 Vt. 138, 140, 86 A.2d 542, 543 (1952)); see Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 374 (1932) ("Gross negligence is substantially and appreciab......
  • Johnson v. State, Dep't of Corr.
    • United States
    • U.S. District Court — District of Vermont
    • 18 May 2023
    ... ... Roy, 196 A.2d 497, 500 (Vt ... 1963) (internal quotation marks omitted) (quoting Emery ... v. Small, 86 A.2d 542, 543 (Vt. 1952)). In other words, ... Plaintiff must allege ... ...
  • Mellin v. Flood Brook Union School Dist.
    • United States
    • Vermont Supreme Court
    • 21 December 2001
    ...the duty owed to another may be grossly negligent. Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (quoting Emery v. Small, 117 Vt. 138, 140, 86 A.2d 542, 543 (1952)). Generally, whether an individual was grossly negligent is a question for the jury, except where reasonable persons ......
  • Deyo v. Kinley
    • United States
    • Vermont Supreme Court
    • 19 May 1989
    ...something more than an error of judgment....' " Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (quoting Emery v. Small, 117 Vt. 138, 140, 86 A.2d 542, 543 (1952)). The concept of gross negligence left our law with the repeal of the guest-passenger statute, 23 V.S.A. § 1491 (repeale......
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