Gertrude A. Johnson v. Leonard R. Cone

• Decision Date: 06 October 1942
• Parties: GERTRUDE A. JOHNSON v. LEONARD R. CONE ET AL
• Court: Vermont Supreme Court

28 A.2d 384

112 Vt. 459

GERTRUDE A. JOHNSON v. LEONARD R. CONE ET AL

Supreme Court of Vermont

October 6, 1942

May Term, 1942.

Negligence.---1. Actionable Negligence.---2. Violation of Safety Statute.---3. Anticipation of Negligence of Others.---4. Physical Facts.---5. Intervening Cause.---6. Co-tort-feasors.---7. Opinion Evidence.---8. Proximate Cause.

1. Actionable negligence is made out only when it appears that a prudent man, in like circumstances, would have thought that injury would be likely to follow from his acts or omissions.

2. Violation of a safety statute makes at least a prima facie case of negligence.

3. A person must under some circumstances anticipate that another may act negligently and his own conduct must then be judged in the light of this requirement.

4. Physical facts are conclusive only when undisputed or proved beyond question.

5. If the negligence of a third person is something the defendant should have anticipated it is not to be treated as an efficient intervening cause of the injury.

6. Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance and not its proximate cause. Where, however, the second actor does not become apprised of such danger until his own negligence added to that of the existing perilous condition, has made the accident inevitable, the negligent acts of the two tort-feasors are contributing causes and proximate factors in the happening of the accident and impose liability on both of the guilty parties.

7. When facts are of such character as to be incapable of being described adequately without the aid of the judgment or opinion of the observer, he may, to a certain extent, add his judgment or opinion.

8. It is the duty of the trial court to charge that, if the injury complained of would have occurred regardless of the defendant's acts, such acts are not the proximate cause of the accident and the defendant is not liable.

ACTION OF TORT based on automobile collision. Trial by jury, Rutland County Court, September Term, 1941, Black, J., presiding. Verdict and judgment for the plaintiff.

Judgment reversed, and cause remanded.

Asa S. Bloomer for the plaintiff.

Fenton Wing & Morse for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

This action is based upon an automobile collision alleged to have been caused by the concurring negligence of both defendants. Verdict and judgment were against both defendants, but defendant Cone has alone excepted. When not named Cone will be referred to herein as the defendant.

The accident happened at about 10 P. M. on May 31, 1941, in a rural area on Route 4 from Rutland to Woodstock opposite the entrance of a side road known as the Gleason road. Route 4 runs approximately east and west and at this point is straight with a good view of traffic in both directions. The road surface consists of two 10 foot lanes of cement and 5 foot tarvia shoulders. The Gleason road has a gravel surface and enters Route 4 from the southwest, and at the intersection has a bell shaped opening 75 feet wide. In this opening there is a cement apron on Route 4, 58 feet and 9 inches long and 4 feet wide taking the place of the tarvia shoulder at that place. A minute or two before the accident Cone, who was on his way to his home in Woodstock, had stopped his car 14 inches off and southerly of this apron with its front wheels about one foot west of the easterly end of the apron, for the purpose of righting a box of turtles which was being carried upon the rear seat. The evidence was very conflicting, but viewed most favorably to the plaintiff reasonably tended to show the following facts: Although the entire width of the Gleason road opening was worked and available for travel, the usual course of travel to and from this road over Route 4 took the course of a Y, the travel to and from the west on Route 4 taking the left or west arm, and the travel to and from the east taking the right or east arm. Cone's lights were off and his car completely blocked the east arm of the Y as traveled, although occupying only a small portion of the entire width of the opening. The accident happened when defendant Wardwell, who was traveling westerly on Route 4, negligently drove to his left in front of the plaintiff, who was traveling in the opposite direction, in order to turn into the Gleason road over the east arm of the Y. Before turning Wardwell had slowed up and was driving close to the center of the road. Immediately after passing the center of the intersection of the east arm of the Y and Route 4 he slowed down to about 15 miles per hour and turned to cross the south lane of Route 4, when for the first time he saw the Cone car blocking his way. The plaintiff's car was approaching at about 40 miles per hour and he was caught in a pocket. He attempted to pull around back of the Cone car and had slowed down nearly to a stop before the impact. The right front end of his car collided with plaintiff's car when he was only part way across her lane of travel and a short distance northwesterly of the rear of the Cone car. Had the Cone car not been there he could have made the turn without accident.

The first exceptions briefed relate to the denial of the defendant's motion for a directed verdict made at the close of all the evidence, and to the overruling of his motion to set aside the verdict. He insists that actionable negligence is not shown, and that the position of his car was not a proximate cause of the accident.

The existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected to happen. Unless it is shown that a prudent man, situated as the defendant was at the time of his alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff or one of the class to which she belonged, as likely to result from the act or omission complained of, actionable negligence is not made out. Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 422, 139 A. 440, 56 A.L.R. 1011; Woodcock's Admr. v. Hallock, 98 Vt. 284, 290, 127 A. 380; Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 381, 177 A. 631; Wagner, Admr. v. Village of Waterbury, 109 Vt. 368, 375, 196 A. 745.

No claim is made but that the evidence shows that the defendant parked his car on the Gleason road without lights, contrary to the provisions of P. L. 5110, sub-sec. XIII, and of P. L 5115. These violations of the statute made at least a prima facie case of negligence. Shea v. Pilette, 108 Vt. 446, 450, 189 A. 154, 109 A.L.R. 933; Hall v. Royce, 109 Vt. 99, 106, 192 A. 193. The defendant concedes that such parking without lights might be said to have created a foreseeable risk to travelers from the Gleason road onto Route 4, but insists that injury to one traveling on Route 4 as the plaintiff was could not be reasonably foreseen, and that Wardwell could not have been reasonably expected to fail to see defendant's car as he approached the intersection, or to enter the Gleason road to the left rather than to the right of and beyond the center of the intersection before turning, as required by P. L. 5110, sub-sec. III. § 302 of the Restatement of Torts, vol. 2, states: "A negligent act may be one which: (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, an animal or a force of nature." In comment 1 it states: "The actor is often required to anticipate and provide against that occasional negligence which is one of the ordinary incidents of human life and therefore to be anticipated, particularly if there is little or no utility in the creation of the situation and...