Huestis v. Lapham's Estate., 78.

• Decision Date: 04 May 1943
• Docket Number: No. 78.,78.
• Citation: 32 A.2d 115
• Court: Vermont Supreme Court
• Parties: HUESTIS v. LAPHAM'S ESTATE.

32 A.2d 115

HUESTIS

v.LAPHAM'S ESTATE.

No. 78.

Supreme Court of Vermont.

May 4, 1943.

Exceptions from Addison County Court; Orrin B. Hughes, Judge.

Proceeding on the claim of Howard I. Huestis, administrator of the estate of Rojeanne R. Huestis, against the estate of Horace J. Lapham, arising out of an automobile accident. Claimant appealed to the county court from the disallowance of his claim and recovered a judgment, from which defendant appeals.

Affirmed.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Harold I. O'Brien and Lindley S. Squires, both of Rutland, for plaintiff.

A. Pearley Feen, of Burlington, and Wayne C. Bosworth, of Middlebury, for defendant.

SHERBURNE, Justice.

This is an appeal to the county court from the disallowance by the commissioners upon the defendant estate of a claim arising out of an automobile accident, in which the plaintiff's intestate, Mrs. Huestis, a guest passenger, was drowned. The declaration charges that the accident resulted from the gross and wilful negligence of Mr. Lapham in the operation of his automobile. Verdict and judgment were for the plaintiff and the defendant has excepted. The only exceptions briefed relate to the denial of defendant's motions for a directed verdict and for judgment notwithstanding the verdict.

The evidence viewed most favorably to the plaintiff reasonably tended to show the following facts: Mr. Lapham, Charles Finn, Lewis Hanfield and Mrs. Huestis were neighbors and resided in Bridport on or near the easterly shore of Lake Champlain opposite Crown Point, New York. Mr. Hanfield's buildings were on top of Ferry Hill, so-called, and about 20 rods from the Lake. The Ferry Hill road runs between the house and barn in a southwesterly direction and gradually nearing the Lake ends at a point or cape on the shore where there used to be a ferry to Crown Point, hence the name Ferry Hill. From here it has been the custom of those residing in that vicinity to go over to Crown Point on the ice in the winter along a route marked by bushes. Because of a current which makes the ice thin and dangerous opposite and northerly of the point on the shore, the route runs southerly for about 10 rods and then turns and runs westerly in a straight line to a ferry road on the New York side. The Lake is here one-half mile wide. Mr. Lapham was 62 years old and had been a town selectman for a number of years. He lived about 10 rods below Mr. Hanfield at about the middle of the hill, and was familiar with the Lake at this point and knew of the current and thin ice opposite the point. A week before the accident he had bushed out the road on the ice with the help of another man. This was done by setting bushes 3 or 4 feet high, consisting of a branch and twigs, upright in the ice. These were staggered to mark out a road two rods wide so that the bushes on either side were about 200 feet apart. Mrs. Huestis was 24. Up to the time of her death she and her husband had lived for about 5 years in a cottage owned by Mr. Lapham near the Lake shore. Up to about three years before they had run the ferry, and after that she had continued to lease boats on the Lake while her husband followed the occupation of a salesman for a business in Middlebury. She knew of the current at that place. She had a daughter Lorraine born June 6, 1936. On the New York side the road from the Lake goes over a knoll about 100 feet from the shore. About one fifth of a mile from the Lake it passes the house of Max O'Dell, then crosses a railroad and intersects with the main highway leading north to the village of Crown Point. On the main highway a little south of the intersection is located the Speyer restaurant.

The accident happened on January 19, 1942. The weather was mild and it had rained. In the early afternoon Mrs. O'Dell saw a two door sedan coming from the direction of the Lake pass her house, and recognized the man riding on the rear seat as Charles Finn, a person she had known for some time. On the front seat was a man driving and a woman holding a child. At about 2 o'clock a party consisting of Mr. Lapham, Mr. Finn, Mrs. Huestis and her daughter came into the Speyer restaurant. After a little Mrs. Huestis asked Mr. Lapham if she could take his car, and then she and her daughter drove up town to do some visiting. She returned at about 5 o'clock and for the next half hour she and Mr. Lapham talked about whether they would go home by the toll bridge or on the ice. She said several times that she was afraid to go back by way of the Lake, because there was so much water on the ice, and that she wanted to go by the bridge, and he several times answered that the ice was 16 inches thick and that it was plenty safe, that he had staked out the road and that she had ridden with him before and was never afraid. He said that he had staked out the road for years and that she would be perfectly safe. She finally said: “If you know that the Lake is safe, then I will ride back with you,” and they went out and got into his car and drove away at 5:30 to 5:45. As they drove away Lapham was at the wheel, Mrs. Huestis was sitting on the front seat beside him holding her daughter in her lap, and Finn was on the back seat. For some reason they returned in 5 or 10 minutes, and turned around in front of the restaurant and drove away for the last time seated in the same order. At about 6 o'clock Mr. and Mrs. O'Dell saw them pass their house going toward the Lake. They recognized Finn riding on the rear seat, and noted that a man was driving and that a woman holding a child was on the front seat beside him. Mr. O'Dell watched the car proceeding until its rear lights disappeared over the knoll 100 feet from the Lake. As the car came over this knoll, Mr. Hanfield from outside his buildings saw its lights and watched its progress from there on. As the car drove onto the ice it stopped long enough to shift gears, and then started across the Lake, but after the first 10 rods, instead of crossing on the bushed road, it bore north of this road and proceeded directly toward the place above referred to where the ice was thin. When it neared the Vermont shore, Mr. Hanfield, who had heard the purr of the motor on the way across, noticed that all at once the motor went dead, and that the lights went out and very soon came on again and disappeared. After going into his barn to speak to his hired man and to get a lantern he went down to the Lake, and found that the car had gone through the ice at a point about 150 feet north of the bushed road and 250 feet from the Vermont shore, and observed Mr. Lapham clinging to a cake of ice. He died before he could be rescued. On the next day the car was removed from the Lake and Finn's body was found inside. On the following day the bodies of Mrs. Huestis and her daughter were recovered, under circumstances indicating that they were drowned while holding on to each other. The ice where the car went through was 3 1/2 to 4 inches thick. There were years that this area did not freeze over and it was good crossing where the road was bushed.

Defendant's motions raise questions of the sufficiency of the evidence to show that Lapham was guilty of either wilful or gross negligence, and to show that Mrs. Huestis was free from contributory negligence and did not assume the risk, and assert as a ground that a verdict for the plaintiff could not be reached without basing an inference upon one or more other inferences.

“Gross *** negligence” as used in P.L. 5113 is higher in degree and more culpable than ordinary negligence, it amounts to a failure to exercise even a slight degree of care, and to indifference to the duty owed a guest passenger and utter forgetfulness of his safety, and is more than an error in judgment, momentary inattention, or loss of presence of mind. Shaw, Adm'r, v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139; Franzoni v. Ravenna, 105 Vt. 64, 163 A. 564; Anderson v. Olson, 106 Vt. 70, 169 A. 781; Ellison v. Colby, 110 Vt. 431, 436, 8 A.2d 637; Kelley v. Anthony, 110 Vt. 490, 495, 8 A.2d 641; Peck v. Gluck, 113 Vt. 53, 29 A.2d 814; Barrows v. Powell, 113 Vt. 109, 29 A.2d 708.

Here Mr. Lapham, a man who had bushed out the road over the Lake so as to avoid the thin ice opposite the point on the Vermont side, after assuring Mrs. Huestis that she would be perfectly safe, chose to drive north of the bushed road for almost the entire distance across the Lake directly toward a place which he knew to be dangerous. If by momentary inattention he got off the road at the outset, he should have immediately taken steps to find it again rather than to proceed blindly for nearly half a mile. Under the circumstances the jury could properly infer that the act of driving where he did was not due to error in judgment, momentary inattention, or loss of presence of mind, but amounted to a failure to exercise even a slight degree of care, and to indifference to his duty to his guests and utter forgetfulness of their safety, and constituted gross negligence. It is unnecessary to determine if such conduct also constituted wilful negligence.

The question as to whether or not the plaintiff has shown that Mrs. Huestis was free from contributory negligence is more difficult. Although the burden of proving freedom from contributory negligence was on the plaintiff, direct and affirmative evidence of due care on the part of Mrs. Huestis was not required. It was enough to carry the question to the jury to give evidence of such facts and...