Irving W. Colburn v. Robert L. Frost

• Court: Vermont Supreme Court
• Writing for the Court: JEFFORDS
• Citation: Irving W. Colburn v. Robert L. Frost, 9 A.2d 104, 111 Vt. 17 (Vt. 1939)
• Decision Date: 07 November 1939
• Parties: IRVING W. COLBURN v. ROBERT L. FROST

9 A.2d 104

111 Vt. 17

IRVING W. COLBURN v. ROBERT L. FROST

Supreme Court of Vermont

November 7, 1939

October Term, 1939.

Negligence (Pedestrian).---1. Burden to Show Freedom from Contributory Negligence.---2. Motion for Directed Verdict.---3. Pedestrian Crossing where no Regular Cross Walk.---4. Circumstances Affecting Due Care of Pedestrian Crossing City Street.---5. Pedestrian's Duty to Ascertain Condition of Traffic.---6. Assumption Driver will Use Due Care.---7. Pedestrian's Care Relates to Assumption.---8. Assumption Does Not Relieve Pedestrian of his Duty.---9. Circumstances Show Pedestrian not Contributorily Negligent as Matter of Law.---10. Pedestrian's Duty as He Saw or Should See It.---11. Being Hit not Necessarily Inconsistent with Due Care.

1. In an action to recover for personal injuries received by the plaintiff as the result of being struck by the defendant's automobile while crossing a street the burden was on the plaintiff to show his freedom from contributory negligence.

2. In considering a motion for a directed verdict for the defendant, the evidence must be considered in the light most favorable to the plaintiff.

3. A pedestrian attempting to cross a street at a point where there is no regular cross walk is required to exercise greater vigilance than at an established crossing.

4. A person crossing a street at other than a cross walk is not required to look at any particular time or place or number of times but is required to exercise the measure of care of a prudent man in the circumstances which, with the dangers involved, must be taken into account in determining what is due care or evidence of it.

5. In Vermont cities and villages, due care requires a pedestrian to look for traffic before starting to cross a main travelled street between intersections or to look at such time and place as will reasonably be of some benefit in protecting him and giving him knowledge of the condition of traffic.

6. A pedestrian crossing a street at other than a regular cross walk is not obliged to use constant vigilance and has the right to assume that the driver of an automobile operating along the street will exercise the care the law requires of him and will give some warning before running down a pedestrian.

7. The care and diligence of a pedestrian crossing a street is to be measured in view of the assumption he may make that an automobile operator will obey the law.

8. Although a pedestrian may assume that an automobile operator will fulfill the care required of him, the pedestrian may not for that reason omit the care required of him.

9. A pedestrian wearing a light coat who starts to cross a city street at other than a regular crossing after looking both ways and seeing the lights of an approaching car some 400 feet away but does not look again before being hit by the car when he has almost completed crossing the 30 to 36 foot street is not, under the circumstances involved, guilty of contributory negligence as a matter of law.

10. A pedestrian hit while crossing a city street is judged by the situation as it appeared or ought to have appeared to him.

11. That a pedestrian is hit under circumstances where a little more watchfulness might have saved him is not necessarily inconsistent with due care on his part.

ACTION OF TORT for negligence. Trial by jury, March Term, 1939 Rutland County Court, Adams, J., presiding. At the close of the plaintiff's case the defendant moved for a directed verdict which was granted. Plaintiff took exceptions. The opinion states the case.

Judgment reversed and cause remained.

Stanley L. Burns and Lindley S. Squires for the plaintiff.

Thomas F. Mangan and James E. Bigelow for the defendant.

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

OPINION

JEFFORDS

At about seven thirty on the evening of November 3, 1938, the plaintiff and his wife were walking easterly on the north side of West Street, one of the principal business thoroughfares of the City of Rutland. The plaintiff was wearing a light colored overcoat. When about in the middle of the block made by the intersection of Cottage Street to the west and Wales to the east they decided to cross the street in order to reach the church to which they were going, which is located on the south side of West Street and easterly of Wales Street. At the time there were cars parked on the north side of West Street but none on the south side.

They stepped off from the curb and went out to the rear of one of the parked cars where a clear view of the street to the east and the west could be had. They waited there until some cars coming from the east had passed. The plaintiff then looked to the east and saw that there were no cars approaching from that direction. He then looked to the west and saw the lights of defendant's car. After some talk between them they started diagonally across the street, the plaintiff walking to the right of his wife. The street at this point was from 30 to 36 feet wide and the place of crossing was not at a designated cross walk. The course that they took was one a little diagonally to the east. The plaintiff testified that they hustled across the street. Although he was 82 years old it is apparent that the plaintiff was rather spry on his feet as he was engaged in the business of giving boxing lessons up to the time of the accident. After starting to cross, neither the plaintiff nor his wife looked to the east or west. When they were within 6 or 7 feet of the south curb the plaintiff was struck by defendant's car and received personal injuries and brought this action in tort to recover compensation for the same.

No horn was blown nor any warning signal given as the defendant testified that he did not see plaintiff until the time of impact. The plaintiff was struck by the left front fender of the car and when the car was stopped he was lying opposite the left front wheel. No evidence was introduced as to the rate of speed of the car as it approached the scene of the accident, nor as to what distance, if any, the plaintiff was dragged by the car before it was brought to a stop.

The mental processes of the plaintiff are shown by the following evidence, all introduced without objection. When the two were standing at the rear of the parked car and after having looked to the east and the west the plaintiff testified that he said to his wife: "We got plenty of time; she said 'there is a light', I said 'yes'; as near as we could locate it it was about the Outlet store or possibly the picture house; of course I couldn't tell, but we supposed we had ample time to cross." He also testified to the effect that in crossing when he did he "thought I was using precaution"; that when he started to cross the street he "thought it was safe or I would never have started." In answer to a question on cross examination: "And you didn't look again?" he replied, "No, sir; I thought it was safe."

The court questioned him as follows:

"Court--Did you look again to see where that automobile went?

A. No, sir, we went, hustled across as good as I, as good as I usually do, always cross pretty fairly quick you know.

Court--That is you didn't pay any more attention to that automobile that was coming?

A. No, sir, because I felt safe, we went right along, felt safe, I knew they could see us.

Court--You thought they could see you, if they got too close they would stop?

A. Why yes."

Mrs. Colburn testified as follows:

"Q. Yes, now as you stepped off from the curb to cross the road you say that you looked for some cars?

A. Yes, we did.

Q. And just describe what you noticed at that time.

A. I know that there was this car coming way up the street by the Outlet store, and we had, we considered we had plenty of time to cross, and we did, we think we did have plenty of time, it was so far away; there was no whistle, no horn blown."

The foregoing summary is based on evidence which was undisputed. The only variance as to any material fact relates to the distance of the car from the plaintiff when he started to cross the street. The plaintiff testified that it was beyond Cottage Street and near the Outlet store or the theatre. No evidence was introduced as to the distance of either of these buildings from Cottage Street. He also testified that he though it was from 200 to 250 feet away but said that this was only a rough guess. The defendant testified in effect that the accident happened about in the middle of the block, and from the point of collision to Wales Street he should say was three or four hundred feet.

At the close of plaintiff's case the defendant moved for a directed verdict on the grounds, in substance, (1) that the evidence did not show any actionable negligence on the part of the defendant and, (2) that the evidence showed contributory negligence on the part of the plaintiff. This motion was granted and the case comes here on exceptions of the plaintiff.

Although not so stated, it is apparent from the transcript that the motion was granted on the second ground only, and it seems that it must have been for the evidence tended to show that the defendant was negligent if not reckless in one or more respects alleged by the plaintiff in his complaint. So we give no further consideration to the first ground and pass to the second.

The burden was upon the plaintiff to show his freedom from contributory negligence, Farrell v. Greene, 110 Vt. 87, 2 A.2d 194, but in considering this motion the evidence must be taken in the light most favorable to the plaintiff. Farrell v. Greene, supra.

Since there was no regular cross walk at the point where the accident happened the plaintiff attempting to cross there was required to exercise greater vigilance than if he...