Emily Lee v. Joseph W. Donnelly

• Decision Date: 03 May 1921
• Citation: 113 A. 542,95 Vt. 121
• Parties: EMILY LEE v. JOSEPH W. DONNELLY
• Court: Vermont Supreme Court

113 A. 542

95 Vt. 121

EMILY LEE v. JOSEPH W. DONNELLY

Supreme Court of Vermont

May 3, 1921

February Term, 1921.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the September Term, 1920, Rutland County, Chase, J Presiding. At the close of the evidence the Court directed a verdict for the defendant. Judgment on the verdict. The plaintiff excepted. The opinion states the case.

The judgment is reversed, and cause remanded.

Lawrence Lawrence & Stafford and Asa S. Bloomer for the plaintiff.

Walter S. Fenton for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and MILES, JJ., and FISH, Supr. J.

OPINION

MILES

This is an action of tort to recover for an injury alleged to have been caused by the negligence of the defendant in the operation of an automobile. At the close of all the evidence, on motion of the defendant, a verdict was directed in his favor, to which the plaintiff excepted, and the case comes here on that exception. The transcript of the evidence is referred to in the bill of exceptions and made controlling as part thereof, as to the tendency of the evidence.

The grounds of the motion were: (1) That there was no evidence in the case tending to show that the defendant was guilty of negligence; (2) that the plaintiff herself was guilty of contributory negligence; (3) that one Frank A. Peets, the driver of the car in which the plaintiff was riding when injured, was guilty of contributory negligence which was imputable to the plaintiff, and (4) that Peets was operating his car at the time of the accident at a rate of speed exceeding ten miles an hour in an incorporated village, and therefore was Prima facie negligent.

The evidence was conflicting, but viewed in the light most favorable to the plaintiff, as it must be, it tended to show that the injury to the plaintiff occurred on a street in the northern part of the incorporated village of Springfield, Vermont, at a point just north of where the entrance to the "Fellows Gear Shaper Shop Bridge," so-called, connects with that street. The plaintiff at the time of the injury was riding with her daughter and granddaughter, in an automobile owned and driven by Peets, her son-in-law. As the party approached the entrance to the bridge, and when at a distance of three hundred feet or more from it, they observed an automobile parked on the righthand side of the street, opposite the entrance of the bridge. The street on which Peets' car was moving ran practically north and south, and the party with whom the plaintiff was riding was going north at the time of the accident. When Peets first saw the defendant's car it was standing still, and there was nothing about it indicating that it was to be moved, and when within about one hundred feet of it Peets sounded his horn, and, noticing no movement of the car, he soon thereafter turned his car to the left for the purpose of passing the defendant's car, and proceeded on the left side of the road until he was within about ten feet of the defendant's car, when the defendant of a sudden, and without warning, started to back his car towards Peets' car at a rapid rate of speed. Peets, in attempting to avoid a collision, at once applied the foot brake, and turned his car further to the left, and by so doing barely escaped a direct collision with the defendant's car; but before he could turn his car back into the road he came in contact with the railing on the northerly side of the entrance of the bridge, and went over the embankment on the left side of the street, causing the injury of which the plaintiff complains.

On this evidence alone we cannot say, as a matter of law, that it had no tendency to show the defendant was negligent, and, when taken in connection with his own testimony, we have no hesitation in saying that it does have such tendency. On direct examination he testified: "I came out and cranked up the car, got in, looked about to see if any cars were in sight; saw no cars in sight, I backed up, sounded my horn and backed up, and I was looking to the north as I was backing to the Gear Shaper bridge, so if a car came from North Springfield I wouldn't back into it. I was backing from the right to go out on the other side." Further along in his direct examination he testified: "I backed the car only a short distance when I heard a horn, and I looked and saw a car coming, and I put in my emergency brakes and stopped, for I didn't know which way the car was coming." From his own testimony it does not appear that he saw the approaching car before he had applied his emergency brakes, though the car could have been seen for a distance of three hundred feet or more, if he had looked in the direction from which the car was approaching him. On crossexamination he testified as follows: "Q. And you say your car had traveled ten or eleven feet going back, and this car, the indication you had of it was that it was immediately behind you, or in the immediate vicinity of where you were?" He answered: "It was. " He was further asked: "Had you looked to the south as you did to the north as you started up, and as you were backing, there isn't any reason that you know of, why you couldn't have seen that car approaching? " He answered: "No."

G. L 4705, subdivision X, provides: "A person shall not turn or back a vehicle of any kind in a public highway without taking due and reasonable care to avoid injury to other users of the highway in so doing. A vehicle shall not be driven in a backward direction farther than is absolutely necessary to avoid accident, or to proceed on its way." Under this statute it was the duty of the defendant to make such use of his eyes and ears before and while backing as a careful and prudent man would make in like circumstances. This, as the evidence tended to show, he did not do. Mr. Peets' car was approaching him in plain view for about twenty seconds, if moving at the rate of speed indicated by the plaintiff's evidence, before the defendant began to back his car. It was not enough for him to look in one direction. Common prudence and regard for the safety of others using the highway required him to look in all directions from which a traveler might be expected to approach him, not only before he began to back, but while he was in the act of backing. He had no right to assume that the road...