George Rush v. Clifford Cody

• Decision Date: 07 May 1935
• Citation: 178 A. 891,107 Vt. 326
• Parties: GEORGE RUSH v. CLIFFORD CODY ET AL
• Court: Vermont Supreme Court

178 A. 891

107 Vt. 326

GEORGE RUSH v. CLIFFORD CODY ET AL

Supreme Court of Vermont

May 7, 1935

February Term, 1935.

View of Evidence on Exceptions To Refusal of Trial Court To Direct Verdict for Defendants-Negligence-When Contributory Negligence Is Question of Fact and When of Law-Burden of Proof as to Contributory Negligence-Automobiles-Reciprocal Rights of Driver of Motor Truck on Highway Construction Work and Workman Employed on Same Job-Decree of Care To Be Exercised by Each-Right of Workman on Highway Construction Work To Assume That Driver of Motor Truck on Same Job Would Not Run Him Down-Sufficiency of Evidence To Establish Contributory Negligence as Matter of Law.

1. On defendants' exceptions to failure of trial court to direct verdict in their favor, Supreme Court will view evidence most favorably to plaintiff.

2. Ordinarily, contributory negligence is question of fact for jury, where law has settled no rule of diligence, but when material facts are undisputed, and are so conclusive that but one reasonable deduction can be drawn therefrom, question is one of law for court.

3. In

ACTION OF TORT for negligence, burden is on plaintiff to show that he was free from negligence that contributed in least degree to accident.

4. Driver of motor truck on road construction job and workman on same job whose duty was to level gravel after truck had dumped it and who had just stopped working temporarily and was preparing to leave, held to have reciprocal rights in highway, and each was bound to exercise due care.

5. While constant vigilance rule was not applicable to such workman, he was required to exercise for his own safety measure of care that prudent man would exercise in same circumstances.

6. While road construction workman whose duty was to level gravel after trucks had dumped it, and who had just stopped working temporarily and was preparing to leave, had right to assume that driver of motor truck on same job who had dumped load of gravel on highway, gone short distance, turned truck around, and was coming back to point in highway where workman had just been working in spreading such gravel, would not run him down, workman could not for that reason omit any care that law demanded of him, since rule applies only in favor of one whose own conduct measures up to that of a prudent and careful man in like circumstances.

7. Road construction workman who was struck by motor truck whose driver was employed on same job, when said truck, after its load of gravel had been dumped in highway, had been driven about five rods to turn around and was coming back to place where workman had been spreading gravel, held guilty of contributory negligence as matter of law under facts shown by record.

ACTION OF TORT for negligence. Pleas, general denial and special plea. Trial by jury at the June Term, 1934, Bennington County, Jeffords, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case. Reversed, and judgment for the defendants.

Judgment reversed, and judgment for the defendants to recover their costs.

Carpenter & Clawson for the defendants.

Jones & Jones for the plaintiff.

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

OPINION

SHERBURNE

This is an action to recover damages for injuries received by the plaintiff when run over by a truck. Verdict and judgment were for the plaintiff and the defendants severally excepted.

The accident happened at about 4 p.m. on September 13, 1932. A gang of men and trucks were engaged in road construction work one-half to three-quarters of a mile below Peru village. This construction began at the top of a hill and from there had been carried away from the village down the hill about 200 feet. The road was constructed of large stones with layers of coarse and fine gravel, the finer being on top. The gravel was drawn through the village from a point some distance beyond. Defendant Cody was operating one of the trucks and drawing gravel. This truck was owned by defendant Williams. It was a Ford one and one-half ton truck, 17 feet long over all, with dual rear wheels. There were fenders over the front wheels, but none over the rear wheels. It had a steel cab 5 feet wide with two steel doors and a wooden dump body 12 inches high, 5 feet wide and 8 feet long. Thirteen feet from the extreme front of the truck and a little in front of the rear wheels was a crosspiece under the body which projected out 6 inches beyond the body on each side but did not quite extend to the dual wheels. There was a similar crosspiece under the rear end of the body. The plaintiff's work was to level the gravel after the trucks had dumped it.

It was primary election day, and, although he had not previously communicated his intention to defendant Cody, plaintiff planned to stop work for a time and, after Cody had dumped his load and turned around, to ride up to the village with him and vote, after which he would ride back on another truck and return to work. There was a sharp conflict as to how the accident happened, but for our purposes here we view the evidence most favorable to the plaintiff.

As Cody came along with a load of fine gravel, the plaintiff showed him where to unload on the left side going down, and then loosened the end boards so that the gravel would spread as the truck proceeded with the body in the dumping position most of the gravel was thus spread about the right thickness, but a heap was dumped over the end boards which the plaintiff had to...