Hammond v. Harjohn
| Decision Date | 04 October 1921 |
| Citation | 115 A. 100,95 Vt. 308 |
| Parties | GEORGE HAMMOND v. ALEXANDER HARJOHN |
| Court | Vermont Supreme Court |
May Term, 1921.
ACTION OF TORT for negligence. Plea, the general issue. Trial by jury at the June Term, 1920, Windsor County, Moulton, J presiding. At the close of plaintiff's evidence a verdict was directed for the defendant. The plaintiff excepted. The opinion states the case.
Judgment reversed and cause remanded.
Blanchard & Tupper and Edward C. Dufficy for the plaintiff.
Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
The plaintiff seeks to recover damages for injuries received by him through the alleged negligence of the defendant in February, 1920, the exact day does not appear. At the close of plaintiff's evidence, defendant moved that a verdict be directed in his favor on the grounds (1) that the evidence shows the plaintiff was guilty of contributory negligence, and (2) that there is no evidence tending to show negligence on the part of the defendant. The motion was granted on the first ground, to which plaintiff excepted. Was this error? is the question before us.
Viewing the evidence in its light most favorable to the plaintiff, it fairly tended to show the material facts to be as follows: At the time of his injury the plaintiff was eighty-two years of age, and was in possession of all his faculties. His eyesight was pretty good for a person of his age, having a pair of spectacles which he wore commonly, except when reading. His dwelling house was on the easterly side of River Street in the village of Springfield, in which house he had lived for more than twenty years. River Street is the main highway running northerly from Springfield to North Springfield and Chester, and there is much travel over it. The part of the street traveled by teams is about thirty-five feet in width the surface being macadamized. On the westerly side of the street, directly opposite the plaintiff's house, is the factory of the machine company, Gilman & Sons; and on that side, next to the macadam, is a sidewalk extending from the "Square," so-called, northerly beyond the factory. The plaintiff could walk and was able to go about the streets of the village, taking care of himself well. He went out twice a day--walked down street to or beyond the "Square," and back to his home. In doing so, he crossed the street directly in front of his house to the sidewalk on the westerly side, and then walking on that returning home, in the inverse order over the same course.
In the afternoon of the day of the accident he went down street, and in returning had reached the point in the sidewalk, opposite his house, and had turned easterly to cross the street as usual to his home. Before stepping off the sidewalk onto the part of the street traveled by teams, he looked both northerly and southerly to see if any teams were approaching. From that point he had an unobstructed view of the street southerly for the distance of seventy-five feet. He testified that he saw no team coming from either direction. He then started to cross the street. When he had gone a part of the way, he was run against by a horse, attached to an express sleigh and being driven northerly over the highway by the defendant, resulting in the injuries complained of. The horse was "jogging along at a very slow trot," unseen by the plaintiff according to his testimony.
The exact ruling below was, that the negligence of the defendant was one part of the proximate cause of plaintiff's injury. This was an overruling of the motion so far as the second ground was concerned. But the court proceeded to the further ruling that the negligence of the plaintiff, in stepping off the sidewalk directly in front of the team concurred as a proximate cause; by reason whereof the motion was granted on the first ground. Our inquiry is therefore confined to the latter question. In considering the motion, the court said the testimony of the plaintiff, also of his wife, was that, before stepping off the sidewalk, he looked both ways of the street, and it would be so taken; that having so looked, he must have been fully conversant with the situation, the nearness of the team, its situation in the highway, the rate of speed it was coming, everything; and, being so conversant, because he looked at the team and must have seen it, he stepped in front of it. In making the ruling in this respect, the court followed the holding in Labelle v. Central Vt. Ry. Co., 87 Vt. 87, 88 A. 517, and in Harrington v. Rutland R. Co., ...
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