Florence Shea, B/N/F v. Gerard Pilette

• Decision Date: 05 January 1937
• Parties: FLORENCE SHEA, b/n/f v. GERARD PILETTE
• Court: Vermont Supreme Court

189 A. 154

108 Vt. 446

FLORENCE SHEA, b/n/f v. GERARD PILETTE

Supreme Court of Vermont

January 5, 1937

May Term, 1936.

Coasting Ordinance Constitutional---Purpose of Coasting Ordinance---Intent to Give Private Action for Violation of Ordinance Not Implied---Effect of Statute or Ordinance on Private Rights Determined on Common Law Principles---Breach of Safety Ordinance Prima Facie Negligence---Coasting Ordinance an Absolute Prohibition---Presumption of Negligence from Violation Held Not Rebutted---Proximate Cause---Plaintiff's Negligence Held Proximate Cause---Last Clear Chance Theory Not Pleaded or Made Issue---Ruling on Issue Not Pleaded and Made Distinct by Conduct of Parties Not Ground of Error---No Reargument to Present Issue Not Raised Below---No Amendment in Supreme Court When Cause Not Tried As If Amendment Pleaded---Remand to Prevent Failure of Justice---Last Clear Chance Doctrine Stated---Doctrine Applicable to Breach of Safety Ordinance---Remand for Presentation of Issue on Last Clear Chance.

1. An ordinance prohibiting coasting except upon streets to be designated is within the competency of a city council to enact.

2. An ordinance prohibiting coasting except upon streets to be designated by the city council is designed to prevent accidents through collision with vehicles and the resultant injuries.

3. When an ordinance prohibiting coasting except upon designated streets contained no provision that a civil action should accrue to a person injured by another's breach of the law, the intent of the lawmaking body could not be stretched to include such a right, for such a deliberate omission is not to be supplied.

4. A lawmaking body must be assumed to know the law, and if upon common law principles a statute or ordinance forbidding certain conduct as an offense against the public and prescribing penalties for its violation would affect private rights, it must have been passed in anticipation of such a result; the effect upon private rights has not been passed upon one way or the other as a question of legislative intent but is a question of applying the principles of the law of negligence, in the light of which the law was passed.

5. The breach of a safety statute makes a prima facie case of negligence and gives rise to a rebuttable presumption of the lack of ordinary care on the part of the delinquent, and there may be circumstances under which the breach of a statutory duty will be determinative of the existence of negligence or negligence per se.

6. An ordinance prohibiting coasting except upon streets to be designated is more than a mere rule of convenience or a regulation of the manner in which an otherwise lawful use of the highway may be exercised, or of the condition of the vehicles to be operated thereon; it is an absolute prohibition against the use of the streets for coasting, so that the element of illegality inheres in the action of coasting itself and not in the mode of its exercise.

7. In action against operator of motor vehicle to recover for personal injuries sustained in accident, which occurred while plaintiff was coasting on street in violation of ordinance circumstances as to weather and lighting conditions, speed of traverse, and knowledge and conduct of plaintiff, as shown by evidence, held insufficient to rebut presumption of negligence arising from breach of ordinance.

8. In such action, plaintiff's negligence must have been a proximate cause of the accident to bar recovery.

9. In such action, negligence of plaintiff coasting in violation of ordinance held a proximate cause of the accident, since it was operative during the entire descent and having voluntarily and knowingly assumed the risk of being unable to do so, she was not excused by the impossibility of stopping the traverse on which she was riding.

10. In such action, theory of last clear chance held not for consideration in Supreme Court where declaration did not allege facts giving rise to a duty in this respect and the issue was not made below.

11. The trial court cannot be put in error for refusing to direct a plaintiff's verdict upon an issue not made by the pleadings of record and not made distinct by the conduct of the parties during the trial, or for directing a defendant's verdict in opposition to the claim of such an issue.

12. A reargument will not be granted to permit a party to present a new question not raised below.

13. Motion for permission to amend declaration in Supreme Court to include allegations permitting application of doctrine of last clear chance was denied when it did not appear that the cause was tried in all respects as it would have been had the declaration contained such allegations.

14. Supreme Court has power in its discretion, and to prevent a failure of justice, to remand a cause, and it is the practice to do so when the circumstances warrant it, regardless of the existence of error in the trial court.

15. The doctrine of the last clear chance presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence has occurred when the defendant could and the plaintiff could not, by the use of the means available avert the accident, so that the negligence of the party creating the situation is remote, and that of the defendant in not averting the accident, after the peril is or should have been discovered, becomes the sole efficient cause of the injury.

16. The doctrine of the last clear chance may apply when the plaintiff's negligence consists in the breach of a safety ordinance.

17. In action for negligence, when plaintiff before trial filed motion to amend his declaration so as to allege facts making available the theory of the last clear chance but motion was not granted, though plaintiff's counsel supposed it had been, held on motion to remand that evidence was sufficient to make jury question on the last clear chance and that cause should be remanded to give plaintiff opportunity of presenting this issue to the jury.

ACTION OF TORT against motor vehicle operator for personal injuries arising out of coasting accident. Plea, the general issue. Trial by jury at the September Term, 1935, Washington County Sherman, J., presiding. Verdict directed for the defendant and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed pro forma and cause remanded with leave to the plaintiff to apply for an amendment of the declaration. Such application to be made within ten days after the opening of the March Term, 1937, of Washington county court, and, if granted, a new trial may be had upon the issue of the last clear chance as a ground of liability. If application is not so made, judgment to be affirmed.

Finn & Monti for the plaintiff.

Theriault & Hunt for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

MOULTON

An ordinance of the City of Barre forbade coasting upon any of the streets or highways therein, except such as should be designated for such use during the winter season by resolution or vote of the city council. A subsequent section provided that a person who neglected or refused to comply with any order or direction of the city council should be subject to a fine. During the evening of January 26, 1934, the plaintiff, aged 18, along with several companions, was coasting down the hill on Beckley Street, which was not a street designated for such use, and upon which several placards were placed calling attention to the fact that coasting thereon was strictly prohibited. The traverse sled collided with a truck driven by the defendant, with the result that the plaintiff was severely injured. In the trial court a verdict was directed for the defendant, and the case is here upon the plaintiff's exception to that ruling. There seems to be no question that the evidence tended to show that the defendant was guilty of negligence, and the issue raised by the motion is whether the plaintiff's recovery is barred by her own conduct in violation of the ordinance.

The ordinance was within the competency of the city council to enact. See Barbier v. Connolly, 113 U.S 27, 28 L.Ed. 923, 925, 5 S.Ct. 357; Hutchinson v. Concord, 41 Vt. 271, 273, 98 Am. Dec. 584. It was clearly designed to prevent just such an accident and resultant injury as happened in this instance. Munroe v. Hartford St. Ry. Co., 76 Conn. 201, 56 A. 498, 500; Gorris v. Scott, L. R. 9 Exch. 125, 128ff. There is no provision that a civil action shall accrue to a person injured by another's breach of the law and we cannot stretch the intent of the lawmaking body to include such a right, for such a deliberate omission is not to be supplied. Evers v. Davis, 86 N.J.L. 196, 90 A. 677, 679. "On the other hand the argument that the failure to give a private action bespeaks an intent that the statute shall have no effect on private rights has little weight. The Legislature must be assumed to know the law, and if upon common law principles such a statute would affect private rights, it must have been passed in anticipation of such a result. The Legislature is to be credited with meaning just what it said--that the conduct forbidden is an offense against the public, and that the offender shall suffer certain specified penalties for his offense. Whether his offense shall have any other legal consequence has not been passed upon one way or the other as a question of legislative intent, but is left to be determined by the rules of law * * *. The impropriety of such speculation about an unexpressed legislative purpose to benefit individuals is more clearly apparent with an ordinance than with a statute. An inferior body exercising delegated...