Higgins v. Metzger

• Decision Date: 03 October 1928
• Court: Vermont Supreme Court
• Parties: HIGGINS v. METZGER.

143 A. 394

HIGGINS

v. METZGER.

Supreme Court of Vermont. Rutland.

Oct. 3, 1928.

[Copyrighted material omitted.]

Exceptions from Rutland County Court; John S. Buttles, Judge.

Action by Bernard H. Higgins, administrator of Paul Higgins, deceased, against Charles P. Metzger. Judgment for plaintiff, defendant's motion for verdict at close of testimony was overruled, and defendant brings exceptions. Judgment affirmed.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ

Jones & Jones, of Rutland, for plaintiff.

Max L. Powell, of Burlington, and Walter S. Fenton, of Rutland, for defendant.

POWERS, J. The defendant with Paul Higgins, the plaintiff's intestate, left Rock Island, P. Q., for Newport, Vt., about 10 o'clock on the night of October 12, 1926, in a Buick touring car which the defendant was driving. The foot brake on this car had given out, as they both knew, but the emergency brake was working. The car was going fast, but just how fast, as we shall see, was left uncertain by the evidence. Whatever the speed of the car may have been, Higgins sat at the defendant's side and made no protest regarding it. The trip into Canada had been made by a road running straight past the house of Commissioner S. B. Bates, north and south. On the return trip, when he approached the Bates place, the defendant discovered a road turning; to his right, marked "Newport," with a luminous sign and other signs directing traffic that way. He started to turn this corner, but discovering that be came by the road dead ahead of him, he tried to turn back into that road. A tree and an electric light pole were in his way, and in trying to go between them the forward wheel of the car hit a stump that he had not seen. The shock threw him forward onto the steering wheel, broke the windshield, wrenched the control of the car from him, and before he regained the control, Higgins was thrown out and killed. This action is brought for the benefit of the next of kin—two small children.

At the close of the evidence, the defendant moved for a verdict on the ground that the plaintiff had failed to show, or to give evidence fairly and reasonably tending to show that the intestate was free from contributory negligence. This motion was overruled, and the defendant excepted.

The negligence of the defendant is not here questioned, but the claim that this can be imputed to the intestate cannot be sustained. The latter was a guest in the car. A self-invited guest, to be sure, but that fact did not affect his standing. robinspn v. Leonard, 100 Vt. 1, 9, 134 A. 706. The trip to Rock Island was the defendant's, who went to call upon a classmate. Higgins went by his leave. No joint enterprise was made of it, and the defendant was in sole control of the car. McAndrews v. Leonard, 99 Vt. 512, 524, 134 A. 710, 715; Landry v. Hubert, 100 Vt. 268, 274, 137 A. 97, 100. In the circumstances Shown, the question of Higgins' negligence must be determined by what he did or omitted to do, without regard to the defendant's lack of care. McAndrews v. onard, supra; Ronan v. Turnbull Co., 99 Vt. 280, 293, 131 A. 788. This question turns largely, if not wholly, on the question of speed.

Speaking with reference to their relation to the question of negligence in the handling of motor vehicles, "excessive speed" and "unlawful speed" are not necessarily the same thing. Speed may, in circumstances, be excessive though lawful. Thus, a speed of eight miles an hour, though lawful, may be dangerous. Adams v Averill, 87 Vt. 230, 88 A. 738; Gates v. Crane Co., 107 Conn. 201, 139 A. 782, 784; Dervin v. Frenier, 91 Vt. 398, 401, 100 A 760. On the other hand, a speed in excess of the statutory limit, though unlawful, may be safe. Oates v. Union R, Co., 27 R. I. 499, 503, 63 A. 675, 677; Lady v. Douglass, 105 Neb. 489, 181 N. W. 173, 174. See, also, MeAndrews v. Leonard. 99 Vt. 512, 134 A. 710. That is to say, the one may warrant an inference of negligence; the other, of due care. It all depends on the circumstances. Landry v. Hubert. 100 Vt. 268, 273, 137 A. 97, 99.

When the defendant reported this accident to the motor vehicle bureau, he gave the speed of the car as 20 miles per hour. As a witness at the trial below, he testified that, upon reflection, he judged that his speed was from 30 to 35 miles per hour. A witness who was in a position to observe the car and estimate its speed testified that it was going from 40 to 50 miles an hour. It must be admitted that there is much in the transcript to indicate that the speed of this car was excessive and negligent. But while much of the evidence was that way, it was not all that way. The testimony of the defendant is to be regarded. The scene of this accident was an incorporated village, where any speed in excess of 15 miles an hour was, by statute, prima facie evidence of negligence. But as we have seen, the violation of the statute was not negligence as a matter of law. Reading the evidence in the light most favorable to the plaintiff, as we must, it would be possible for the jury reasonably to find that this car was moving at a rate of speed between 30 and 35 miles an hour—even if the speed named in the defendant's report is ignored. This was less than the speed testified to in McAndrews v. Leonard, 99 Vt. 515, 134 A. 710, in which case we held that the question of speed and negligence were for the jury. "The question of what is or what is not," says the court in Wingert v. Cohill, 136 Md. 399, 403, 110 A. 857, 859, "a speed that the court will declare negligent as a matter of law varies, and must vary very largely with the circumstances of each particular case. Certain it is that the courts have not and will not declare as matter of law that the operation of a machine in the open country, upon a public highway, at a speed of 25 miles per hour, is negligence per se, where the view of the one operating (lie machine is unobstructed, and the road of reasonable width for two vehicles to meet or pass one another, and the condition of the roadway good." In Willis v. Anchor Cartage & Storage Co. (Ohio App.) 159 N. E. 124, 126, the court says:

"We have no doubt that Moley was driving faster than 15 miles an hour. We have no doubt he was driving 40 or 45 miles an hour, but what of it? Here was a straight road, at midnight, when the traffic has a right to expect the road to be free, and driving at a high rate of speed on a road such as this would not of itself be negligence, and the travelers had a right to expect the road to be kept open."

In Burke v. Cook, 246 Mass. 518, 522, 141 N. E. 585, 587, it is said that—

"A speed of 35 miles an hour, while prima facie evidence of a rate higher than is reasonable and proper, if continued for the distance of a quarter of a mile, was not conclusive even of negligence."

And in Gourley v. Jackson, 116 Okl. 30, 243 P. 243, 247, it is held that a speed of 25 miles an hour outside a city is not negligence per se.

So far as actionable negligence is concerned, the circumstances shown by the record before us would justify driving a car at a speed substantially higher than the limit fixed by the statute—at least, a jury might reasonably say so. It was in the night, the road was smooth and straight; it was wide and level, or practically so; it was entirely free from traffic. We cannot say that 35 miles an hour in such circumstances is of itself negligence. Then, too, a speed that would be dangerous to other users of the highway might not be so as to the occupants of the car.

Much less can we say that as matter of law Higgins failure to protest was negligence. His duty was not coextensive with that of the driver. The statute referred to specifies the driver, not the guest. The latter is not held to the same degree of watchfulness to keep down the speed, as the driver is. McAndrews v. Leonard, 99 Vt. 512, 525, 134 A. 710, 716. To be sure, the guest in that case was on the back seat, but the rule extends to one on the front seat, as well. The law fixes no specified rate of speed at which the guest must register his protest or be held guilty of contributory negligence as matter of law. Then, again, a guest who is ignorant of the speed and the perils incident thereto cannot be held to the same responsibility as one with full knowledge of such things. It is shown that Higgins knew something about automobiles, but he may have been as bad a judge of speed as the defendant apparently was when he reported the accident. It does not appear that the car was equipped with a speedometer, and if Higgins did not know the speed of the car, his silence could not make him negligent as matter of law. Surely, he was not bound to anticipate the defendant's attempt to make the turn at the Bates corner and then to get back into the straight road again. It must be remembered that under the motion we deal with the tendency of the evidence, and not its weight, McAndrews v. Leonard, 99 Vt. 512, 523, 134 A. 710, and we hold that the question of Higgins' negligence was for the jury, and that the defendant's motion for a verdict was properly overruled. Holland v. Yellow Cab Co., 144 Minn. 475, 175 N. W. 536, 537; Dedman v. Dedman, 155 Tenn. 241, 291 S. W. 449, 451; Wills v. Anchor Cartage & Storage Co., supra.

The court charged the jury that the rule which defined the duty to exercise care with reference to the operation of the car was, in terms, the same whether applied to the defendant or the intestate, but was not the same in its practical application to them. To this instruction the defendant excepted on the ground that "there is no difference whatever in the standard of care between the plaintiff (intestate) and defendant, or do the requirements of the rule at any time vary." The defendant now says that the court, having complied with his request to charge as to contributory negligence, gave confusing and conflicting instructions on that subject. But that was not the ground of the exception. It is true...