Frank L. Wellman, Admr. v. Rowe Wales

• Decision Date: 09 November 1923
• Citation: 122 A. 659,97 Vt. 245
• Parties: FRANK L. WELLMAN, ADMR. v. ROWE WALES
• Court: Vermont Supreme Court

122 A. 659

97 Vt. 245

FRANK L. WELLMAN, ADMR. v. ROWE WALES

Supreme Court of Vermont

November 9, 1923

February Term, 1923.

ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the April Term, 1922, Windham County, Wilson, J presiding. Verdict for the plaintiff. Motion to set aside verdict overruled and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, verdict set aside, and cause remanded.

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

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

OPINION

BUTLER

This is an action brought by Frank L. Wellman, Administrator of Fred V. Hall, deceased, for the benefit of his next of kin. The complainant seeks to recover damages of the defendant for personal injuries received by Hall resulting in his death, by reason of the alleged negligence of the defendant in operating his automobile on the public highway in the town of Rockingham. Trial by jury, verdict and judgment for the plaintiff. After verdict and before judgment, defendant moved to set aside the verdict on five grounds specified in the motion. The motion was overruled and the case comes here on defendant's exceptions to the overruling of this motion, on each of the grounds specified. The third, fourth, and fifth grounds of the motion may be best considered together for they present, in one way or another, substantially the same question, viz., whether there was any legal evidence in the case, fairly and reasonably tending to show the essential facts that plaintiff's intestate was injured by the negligence of the defendant and without negligence on the part of the decedent. When all the evidence is before the Court, and the exception is taken, as here, on the ground that the verdict was contrary to the instructions of the court, and wholly unsupported by the evidence, the rule as to discretion does not apply and the action of the trial court is reviewable here. Whitman v. Dailey, 95 Vt. 454, 115 A. 559; French v. Wheldon, 91 Vt. 64, 99 A. 232. The other grounds stated in the motion, that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, as to which the action of the court cannot be disturbed, except for abuse of discretion. Bradley v. Blandin and Somerset Land Co., 94 Vt. 243, 110 A. 309; Lincoln v. Central Vt. Ry. Co., 82 Vt. 187, 72 A. 821, 137 A. S. R. 998.

First, then, is there any evidence to support the verdict? The essential facts to be supported are these: First, that the injuries to plaintiff's intestate resulting in his death were in fact caused by his having been in collision with an automobile; second, that the defendant was at the time operating the automobile causing the injury; third, that the collision or accident was caused by the negligent act or omission of defendant in operating the car; fourth, that there was no negligence on the part of the plaintiff's intestate proximately contributing to the injury.

Was the decedent struck by an automobile? The decedent Hall, June 11, 1921, about 12 o'clock noon was found by witness William J. Hutchins lying on the ground with his head about the center of the road, his feet pointing to the west and his head northerly down the hill with the right cheek in the sand, his bicycle lying across his legs, the front wheel of the bicycle and the handle bars pointing south up the hill. It was a gravel road, quite hard surface, not noticeably disturbed. A pool of blood found under his head eight or ten inches in diameter had run down the hill ten or twelve inches. The decedent was unconscious and died about twelve hours later at the hospital where he was taken. As shown by the autopsy, the outside frontal bone of the skull was fractured, the nose and lower jaw were broken, and there were other serious injuries about the decedent's head and face.

The place where the decedent was found was on the main highway leading north, about 2 miles from Bellows Falls near the foot of a hill about 75 rods long and of about 6 per cent. grade, sloping northerly. The place was afterwards marked by an iron pin. No one testified to having seen the accident. The bicycle and lantern were exhibited in court, conceded to be in the same condition as when found. The lantern which had been clamped to the left front fork, when found had been loosened and was jammed between the spokes and the left fork of the front wheel from the rear. Several of the wire spokes of the front wheel were broken and badly bent. Both forks of the front wheel bent backwards, the left a little more than the right and the top bar of the frame was buckled slightly preventing the front wheel from turning to the right under the frame, indicating force from the front, while there were no marks, bruises, or jams on the rear wheel, mud-guard, or any part of the bicycle back of the pedals.

Some hours after the accident, at the hospital, the decedent in a measure, at least, regained consciousness. The nurse, called as a witness by defendant, testified to declarations then made largely against his interest which are more fully noticed in a later paragraph. As a part of these declarations, decedent being asked by the nurse if he was struck by an automobile, answered "Yes." Although this statement was in his favor, it being part of the whole declaration made at the time, it, as well as that which was against him, was to be weighed by the jury. Mattocks v. Lyman, 18 Vt. 98, 46 A. D. 138. When we consider this, together with the condition in which he was found, the extent and character of the injuries to the bicycle and the decedent as testified to by Dr. Whitney and other witnesses to the effect that such injuries would be unlikely to occur by falling from his bicycle without other contributing force, it cannot be said as matter of law that there was no evidence tending to show that the accident was caused by a collision with an automobile.

Second (a). Assuming that such was the cause of the accident, was there any evidence tending to show that it was defendant's car with which the collision was had?

The decedent, riding a bicycle, going northerly along the highway at an estimated speed of 6 to 10 miles an hour, passed witness Porrette who was traveling on foot in the same direction, and was last seen by witness Rattry about in front of or a little beyond the "Wheeden House," near the crest of the hill as he was beginning to go down over the grade.

From where he passed Porrette to the place of the accident is about 1,260 feet, and up a slight grade until the crest of the hill is reached about 800 feet southerly of the iron pin above mentioned. Defendant soon after passed witness Porrette driving his automobile, a light buff colored Cadillac roadster, going northerly along this highway at a speed of about 30 miles an hour and was last seen before the accident going over the hill a little beyond the Wheeden House. Porrette was walking about three miles per hour. Defendant was next seen by witness Hutchins at the foot of Sand Hill, some 3,188 feet from the point marked by the iron pin, traveling north at a speed of 30 to 35 miles an hour as he passed Hutchins and his wife, who were traveling south at about 20 miles an hour.

There was no evidence of any other automobile being seen on this section of the highway of about a mile in length from the time defendant passed Porrette until he met Hutchins' car as above stated, nor until Hutchins reached the scene of the accident. The testimony, then, isolates the defendant and the decedent on this section of the highway, and fairly tends to show that defendant's car was, in fact, the only moving vehicle to pass the place of the accident between the time the decedent passed out of sight over the brow of the hill and the time he was discovered by Hutchins.

Careful calculations were made by both parties based upon distances given by witnesses of actual measurements, the estimated speed of defendant's car, the estimated speed as last seen of the decedent upon his bicycle, the location, assumed continuous speed, and of objects as shown by evidence; and from these calculations as made by plaintiff, the defendant would reach the place of the accident about the time that decedent would arrive there.

It must be held that these facts standing alone tend to show, as the jury have found, that it was the defendant's car that collided with the decedent's bicycle.

(b.) Was this finding contrary to evidence? It is undisputed that defendant's car was traveling in the same direction as the decedent on his bicycle. The injuries and marks on the bicycle show a blow from the front. There were no marks or indications of a blow from the rear and no marks on the surface of the roadway showing the course of the bicycle or car or indicating a collision. Careful examination of defendant's car showed no marks or scratches indicating a collision. It is quite difficult to see how it would be possible for a car going in the same direction to have struck the bicycle as claimed so as to turn the lantern and wedge it in between the wheel and fork from the rear, buckle the top bar of the frame, bend the forks backward, and turn the wheel to the left under the frame as appears from inspection, without the bicycle was turned so as to meet the car.

By the calculations made by defendant, based upon the testimony and the estimated speed of defendant's car at 30 miles per hour, and of the bicycle as shown by testimony, defendant...