Gould v. Gould

• Citation: 6 A.2d 24
• Decision Date: 02 May 1939
• Docket Number: No. 1036.,1036.
• Parties: GOULD v. GOULD.
• Court: United States State Supreme Court of Vermont

6 A.2d 24

GOULD

v. GOULD.

No. 1036.

Supreme Court of Vermont Rutland.

May 2, 1939.

[Copyrighted material omitted.]

Exceptions from Rutland County Court; Charles A. Shields, Judge.

Action by Mae W. Gould against Robert A. Gould for injuries sustained in an automobile accident. Judgment was for the defendant, and the plaintiff brings exceptions.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Asa S. Bloomer, of Rutland, for plaintiff.

Fenton, Wing & Morse and John A. M. Hinsman, all of Rutland, for defendant.

BUTTLES, Justice.

The plaintiff seeks to recover damages for injuries received when the automobile driven by the defendant, in which the plaintiff was riding on the rear scat as a passenger, went off the road while approaching a right hand curve near Grafton, N. H., on January 8, 1937. At the commencement of the trial and after the jury was empaneled it was conceded that the State of New Hampshire did not have a guest law, so-called, and that simple and not gross negligence applied to this case. The undisputed evidence indicated that the party left Rutland, Vermont, between three and four o'clock in the afternoon of that day to drive to Portsmouth, N. H. The defendant's father was riding with him on the front seat and on the rear seat, besides the plaintiff, were her daughter-in-law and her daughter, who was seated in the middle. The accident happened about 5:30 in the afternoon and at that time and prior thereto the weather was rainy and foggy. The defendant was driving at a speed of about thirty-five miles per hour.

A jury trial was had with verdict and judgment for the defendant and plaintiff comes to this Court on exception to the overruling by the trial court of her motion to set aside the verdict and grant a new trial and on four exceptions to failure to charge. No other motions and no requests to charge were made by the plaintiff. We first consider the plaintiff's exceptions to the charge as given.

Plaintiff excepted to the "failure of the court to charge the law of the case to the effect that on the evidence in the case the defendant was negligent as a matter of law and reasonable minds could not differ on the issue of negligence." In briefing this exception plaintiff merely refers to what was said in her brief in support of her motion to set aside the verdict. Her argument there, so far as applicable to this exception, amounts to this: The evidence shows that there was a dense fog, and the defendant proceeded at thirty-five miles per hour through a curve and ran out of the road on the left side of the road; therefore the defendant was negligent as a matter of law. The plaintiff's statement is not quite an accurate statement of the facts shown by the undisputed evidence. Defendant's evidence regarding the occurrence of the accident as contained in his statement written by him on Plaintiff's Exhibit No. 1 is as follows: "Was Driving about 35 mile a hour as we approached the curve the Rear End Slewed around. I cut wheels to avoid Going over Bank But was to Late the Back Wheels were on the Edge." From this it is apparent that the jury would be warranted in finding that the car skidded out of the road and over the bank, instead of running out of the road as stated by the plaintiff. Plaintiff also says that the car "proceeded through the curve", but the only evidence on that point indicates that the accident occurred as the car "approached the curve", with perhaps an inference from a statement made by the defendant in cross examination that it occurred as the car "came on to the curve".

Plaintiff's contention must be examined in connection with the fact, shown by undisputed evidence, that the skidding of the rear wheels started the trouble. From all the evidence it is a fair inference that the car skidded on ice. This Court has said repeatedly that the mere fact that a motor vehicle skids does not of itself constitute evidence of negligence on the part of the defendant. Williamson v. Clark,

103 Vt. 288, 291, 153 A. 448; L'Ecuyer v. Farnsworth, 106 Vt. 180, 182, 170 A. 677; Standard Oil Co. of New York v. Flint, 108 Vt. 157, 160, 183 A. 336; Johnson v. Burke et al., 108 Vt. 164, 168, 183 A. 495. Neither is a speed of thirty-five miles per hour at the time the skidding commences in itself evidence of negligence. In Johnson v. Burke et al., supra, we said 108 Vt. at page 168, 183 A. at page 496: "we cannot take judicial notice, whether the likelihood of the car's skidding would have been greater or less if the car had come upon the ice at a slower rate of speed."

The plaintiff relies upon a line of our cases which hold, in effect, that it is negligence as a matter of law to drive an automobile along the highway, when the vision is obscured, at such a speed that it cannot be stopped or turned aside within the distance that objects can be seen ahead. This rule was applied in Steele v. Fuller,

104 Vt. 303, 311, 312, 158 A. 666, as to contributory negligence of the plaintiff who collided with a parked car in the dark, the plaintiff himself having defective lights. The same rule was applied in Palmer v. Marceille, 106 Vt. 500, 508, 175 A. 31, to a situation where the plaintiff ran into a dense column of smoke coming from a roadside fire and collided with a parked truck which the plaintiff could not see because of the smoke. In Dessereau v. Walker, 105 Vt. 99, 163 A. 632, in which the car was driven off the road and overturned while proceeding at a rate of forty miles per hour through fog so dense that the guard rails beside the road could not be seen, it was held that so proceeding in such poor visibility, together with other facts shown, constituted evidence from which gross negligence could be found. In these cases proceeding in poor visibility was, or could be found to be, a proximate cause of the accident. In the present case the evidence did not so indicate. Here the only cause shown for the accident was the skidding of the rear wheels. No connection between the poor visibility and the skidding is shown. It was not made to appear that the ice could have been seen except for the fog or that it could have been avoided if it had been seen. With the evidence standing thus it was not error for the court to fail to give a peremptory instruction of negligence on the part of the defendant.

The plaintiff has briefed an exception to the sentence of the court's charge which read's: "In this case you need not consider whether the speed was unlawful, for there is no evidence in the case as to what the lawful rate of speed is in New Hampshire, where the accident occurred." Evidently the court here referred to a statutory speed limit. The law of New Hampshire not being shown the law of Vermont would apply. No question is made as to this. The plaintiff contends that a negligent speed is an unlawful speed but cites no authority for this proposition. This is inadequate briefing. Anway the exception is without merit. In those portions of the charge immediately preceding and immediately following the sentence to which exception was taken the law regarding speed, as it related to the circumstances of this case was carefully and adequately explained to the jury. A charge is not to be tested piece-meal, but...