Hannon v. Myrick

• Citation: 111 A.2d 729,118 Vt. 428
• Decision Date: 01 February 1955
• Docket Number: No. 17,17
• Parties: Birdella HANNON v. Wright G. MYRICK.
• Court: United States State Supreme Court of Vermont

Page 729

111 A.2d 729

118 Vt. 428

Birdella HANNON v. Wright G. MYRICK.

No. 17.

Supreme Court of Vermont.

Feb. 1, 1955.

McNamara & Larrow, Burlington, for plaintiff.

Edmunds, Austin & Wick, Burlington, for defendant.

Before SHERBURNE, C. J., CLEARY, ADAMS and CHASE, JJ., and SMITH, Superior Court Judge.

SHERBURNE, Chief Justice.

This is an action to recover damages for injuries received on December 19, 1952, in an automobile collision on U. S. Route 7 in New Haven, and comes here, after verdict and judgment for the defendant, upon the plaintiff's exceptions to the lower court's instructions to the jury.

The accident happened at about 6:30 P. M. It was then dark and the weather was clear. Just before the accident the plaintiff had proceeded some distance on a driveway entering the west side of U. S. Route 7, and had entered that highway and had proceeded southerly on her right-hand side thereof a distance of two or three car lengths or twenty to twenty-five feet, when the rear end of her car was run into by the defendant's car, while also traveling southerly on this highway. North of the driveway the highway is level for a distance of three-tenths of a mile, then dips and again rises into view at a distance of seven-tenths of a mile. The evidence is conflicting as to whether the plaintiff stopped before driving onto the highway. She testified that she did, and that she looked both ways and saw two sets of lights of cars about seven-tenths of a mile to the north and that there were no lights of a car within three-tenths of a mile in that direction. She didn't remember if she looked again to the north when turning into the highway and testified that she had attained a speed of about 25 miles per hour when run into. She was aware that there was a lot of traffic on this highway. The defendant was traveling at forty to fifty miles per hour, his motor vehicle report stating that he was going at about fifty.

After instructing the jury about the plaintiff's duties in entering the highway from the driveway to look for approaching vehicles and to look effectively and not to proceed if she saw a vehicle coming, unless as a careful and prudent person she believed and had a right to believe that she could pass in front of it in safety, the court charged:

'In this connection, if from the evidence you find that Mrs. Hannon saw or should have seen the Myrick car approaching from the north before the entered the highway, and if you find that the defendant's car was in such close proximity to the driveway from which the plaintiff was about to enter Route 7 that the plaintiff, Mrs. Hannon, could have reasonably foreseen that a collision was likely to result if she continued to drive forward into the highway you then are instructed that the plaintiff in such event might well be found negligent.'

This instruction was not excepted to by the plaintiff, but the defendant excepted that under such circumstances the plaintiff was negligent as a matter of law. Whereupon the court further charged the jury:

'By way of supplemental charge I might add that in the exercise of the care and prudence, which the plaintiff was called upon to exercise under the then existing circumstances, it was the duty, of course, of the plaintiff to make reasonable use of her senses and intelligence to discover any danger on the highway by way of approaching vehicles or otherwise. And quite naturally that duty also implied a duty to see any cars within her vision. Now, if from the evidence you find that Mrs. Hannon saw, or in exercising the care, prudence and diligence that a careful and prudent person was called upon to exercise at the time that she saw the Myrick car approaching from the north before she entered the highway, and if you find that the defendant's car was in such close proximity to the driveway from which the plaintiff was about to enter Route 7, that the plaintiff could have reasonably foreseen that a collision was likely to result, provided and if she continued to drive forward into the highway, then, in such an event, in the exercise of the care and diligence that an ordinary careful and prudent person would exercise under like circumstances, under the law, she was required to stop, and if you find these facts to be the facts, and she proceeded upon said highway after discerning the existence of a car in close proximity without a reasonable opportunity to enter the highway without collision, then, in such event it would be negligence. But when you all get through here Ladies and Gentlemen, as I previously stated, the true test, and the test that you must apply, is whether the plaintiff acted as a careful and prudent person ought to have acted under like circumstances--also whether the defendant, having in mind the existing circumstances, used the care and prudence which a careful and prudent person is called upon to exercise at the time and place.'

To this supplemental...