Frank L. Wellman, Admr. v. Rowe Wales

• Decision Date: 06 May 1925
• Parties: FRANK L. WELLMAN, ADMR. v. ROWE WALES
• Court: Vermont Supreme Court

129 A. 317

98 Vt. 437

FRANK L. WELLMAN, ADMR. v. ROWE WALES

Supreme Court of Vermont

May 6, 1925

February Term, 1925.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the June Term, 1924, Windsor County, Thompson, J., presiding. Defendant's motion for directed verdict granted, and judgment on such verdict. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Barber Barber & Miller and Raymond Trainor for the plaintiff.

Stickney Sargent & Skeels and Walter S. Fenton for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

When this case was remanded under the rescript in Wellman, Admr. v. Wales, 97 Vt. 245, 122 A. 659, the defendant sought and was granted a change of venue, and the retrial was in the Windsor county court. At the close of the plaintiff's evidence, the defendant moved for a directed verdict. This motion was granted and the plaintiffs excepted. This exception presents the only question relied upon in this Court.

Though the evidence now before us is largely like that in the previous record, it is quite different in some important particulars. The statements made by the decedent as to how he received his injuries are not in this record. In other respects, the evidence in this trial differs from that in the other, as will hereinafter appear.

The theory on which the plaintiff now puts his case is entirely different from the one before presented. He now claims that the defendant, driving at unlawful speed, in attempting to pass the decedent on the left, so carelessly handled his car that the hub cap on one of the right-hand wheels caught the lamp on the bicycle and set in motion the train of events that finally resulted in the fatal injuries suffered by the decedent. It is upon this theory that the plaintiff must succeed, if he succeeds at all, for we do not search the record for grounds of reversal. McClary v. Hubbard, 97 Vt. 222, 122 A. 469.

When the case was here before, we held in substance that the plaintiff carried what Prof. Wigmore would call the "risk of persuasion " on four essential facts: (1) That the decedent's injuries resulted from a collision with an automobile; (2) that the defendant was operating the automobile; (3) that the collision proximately resulted from the defendant's negligence; (4) that the decedent was free from contributory negligence.

This situation was not changed on the retrial, except, as we shall see, the first and second questions may now be treated as one. The plaintiff carried the burden as before. So far as the question of contributory negligence is concerned it may be quickly disposed of, and we will take it up at this point.

The defendant, being called to the stand by the plaintiff, testified to the effect that, going north at the rate of about 30 miles an hour, he passed the decedent on the left, that the latter was then well out on the right-hand side of the road, and that he was then riding carefully and leaving an abundance of room for the defendant to pass in safety.

Here, then, is evidence to clear the decedent from contributory negligence, if it is available to the plaintiff. And it is so available, for he was not bound by the defendant's statement as to where he passed the bicycle. This is so, not because the defendant was his own witness on that point (as the plaintiff claimed below), but because a party is not bound by his witness' statement and may always show the fact as it is. Cox v. Eayres, 55 Vt. 24, 45 A. R. 583; Jennett v. Patten, 78 Vt. 69, 62 A. 33; Boville v. Dalton Paper Mills, 86 Vt. 305, 85 A. 623.

That there was evidence tending to show that the defendant actually overtook the bicycle north of the top of the Weeden hill cannot be denied. The testimony of Porrette so tended. That of Rattery, the painter, was to the same effect, though it was to be weighed in the light of the fact that he testified at the first trial that he didn't know which way the automobile he heard was going. There being a conflict in the evidence as to where the defendant passed the decedent, it was for the jury to say. And if it found that it was at the point of the iron pin (which marked the place of the accident), it could apply the whole of the defendant's statement there, for he testified that he only passed the decedent once on that trip.

Turning now to the other essential elements of the plaintiff's case as recorded above, was the decedent injured by an automobile? On this point, as we have already seen, the plaintiff did not have the benefit of the decedent's statement; but the other evidence specified in our former opinion was substantially the same at his trial. Taken alone, it could not support a finding in the plaintiff's favor. The simple fact that an automobile could cause such injuries would not, alone, warrant a finding that it did. Evidence which merely makes it possible for the fact in issue to be as alleged, or which raises a mere conjecture, surmise, or suspicion, is an insufficient foundation for a verdict. Kruck v. Conn. Co., 84 Conn. 401, 80 A. 162; Theobald v. Shepard Bros., 75 N.H. 52, 71 A. 26; Scott v. Boyne City, etc., Co., 169 Mich. 265, 135 N.W. 110. Or, to state it as we did in our former opinion, the inference from the facts proved must be "at least the more probable hypothesis, with reference to the possibility of other hypotheses." But we will assume that this evidence when taken with the evidence under the second element of the plaintiff's claim, to which we are about to refer, makes a situation, under which we cannot say as a matter of law that a conclusion that an automobile was responsible for the decedent's injuries would be unwarranted.

As to the evidence of the defendant's connection with the accident, it is enough here to say that what appears on pages 250 and 251 of the report of our former decision, under subdivision (a) is equally true here and may be adopted as correct without repetition; and we will assume that it must be held that the facts recited there and adopted here tend to show that the defendant's car collided with the decedent's bicycle. These assumptions do not amount to piling one inference on another as the defendant says; the question whether the decedent was hit by an automobile and the question whether the defendant was driving that car are not in reality two questions, but as the case is now presented one, only. As the evidence stands, if the bicycle was hit by an automobile, it must have been hit by the defendant's automobile, for no other car was on that road in that vicinity. This brings us to the question of the defendant's negligence, the most difficult and important question in the case.

The defendant testified that the road at the point where he passed the decedent was wide and smooth and that there was no deviation in the course of the bicycle; that it kept going straight ahead, and there was nothing to prevent his passing safely.

It is apparent that any such collision between these vehicles as the plaintiff claims would be impossible if they were travelling on parallel lines. The overhang of the fenders and running board of the automobile, and the projection of the handle bars and pedals of the bicycle, to say nothing of the arm and leg of the decedent, would prevent it. As the testimony stood, the only rational theory on which such a collision could be worked out is that the automobile veered to the right at a time and in such a way that its front wheel passed without interference, but the rear hub cap caught the lamp.

The lamp itself is such a vital factor in the plaintiff's theory, that a description of it and its present condition is required. It is sometimes spoken of in the evidence as a lantern. It is a bulls-eye, acetylene gas lamp, put out under the tradename "Solar," made to be mounted on the fork or on the steering column of the bicycle as desired. It can be mounted on either prong of the fork, but the evidence tended to show that it was attached to the left prong at the time in question. It is attached by means of a clamp operated by a wing nut, and when on the fork extends therefrom a total distance of about 4 1/2 inches. The clamp is at one end of an arm, the other end of which is connected to the back of the lamp by a device containing two joints: One allows the lamp to be turned to the right or left without interfering with the clamp; the other allows it to be tilted up and down. Under the lamp proper, and made integral with it, is a cylindrical cup, sometimes spoken of as the "container," about 2 1/2 inches in diameter and of about the same depth, which carries the carbide; and attached to the rear of the lamp and overhanging the cup is the little tank that carries the water which feeds down into the carbide producing the gas that gives the light. The clamp is about 3 1/4 inches long over all; and the round opening in it designed to clasp the steering post when mounted thereon was at the time here in question and now is "plugged" with a piece of wood which tends to prevent the jaws of the clamp from closing as completely as they otherwise would. On the rear and near the top of the cup is a dent, which the plaintiff says was made by the hub cap when the collision took place. This dent slants across the back of the cup, the lowest part of it being to the left, and it extends upward and to the right until at its right end it involves the whole width of the top rim which joins the cup to the lamp itself, and down back of which hangs the joint and wing nut that allows the lamp to be tilted as above stated. In its deepest place the dent is 1/5 of an inch in depth.

The prongs of the bicycle fork are about 15 inches long; they are about 3 inches apart at the axle of the...