J.W. Appleyard, D/B/A Appleyard Motor Transp. Co. v. Ray Co.

• Decision Date: 03 May 1949
• Citation: 66 A.2d 10,115 Vt. 519
• Parties: J.W. APPLEYARD, d/b/a APPLEYARD MOTOR TRANSP. CO. v. RAY COMPANY
• Court: Vermont Supreme Court

66 A.2d 10

115 Vt. 519

J.W. APPLEYARD, d/b/a APPLEYARD MOTOR TRANSP. CO. v. RAY COMPANY

Supreme Court of Vermont

May 3, 1949

February Term, 1949.

Negligence In Operation Of Motor Vehicle.

1. In passing upon a motion for a directed verdict the evidence must be viewed in the light most favorable to the party against whom the motion is directed.

2. The violation of a safety statute makes a prima facia case of negligence; it gives rise to a rebuttable presumption rather than a conclusive presumption of negligence, and proof of attendant circumstances may, in a civil case, counterbalance or overcome the effect of the statute.

3. An allegation of negligence involving violation of a safety statute requires proof of the fact that the defendant knew or should have known of the violation before it can be said as a matter of law that he was negligent.

ACTION OF TORT for negligence in operation of motor vehicle. Trial by jury, Caledonia County Court, December Term, 1947 Blackmer, J., presiding. Verdict and judgment for the plaintiff.

Judgment affirmed.

Sterry R. Waterman and John H. Downs for the defendant.

Richardson & Caldbeck and Harry W. Witters for the plaintiff.

Present SHERBURNE, JEFFORDS, CLEARY and ADAMS, JJ.

OPINION

ADAMS

This is an action to recover damages to the plaintiff's milk tank trailer received in a collision with the defendant Ray Company's truck on October 5 1947, on U.S. Route 5 south of St. Johnsbury. The plaintiff discontinued during the trial as to the defendant Rodgers, so the term "defendant" as used herein will refer only to the Ray Company. The plaintiff's trailer had dual wheels at its rear and its front rested upon and was attached with a pin to a tractor unit. This had single wheels in front and dual wheels in the rear. Both vehicles were operated by employees. The defendant has excepted to a verdict and judgment for the plaintiff.

The defendant excepted to the denial of its motions for a directed verdict and to set aside the verdict. The only ground of these motions, which is briefed and relied upon, is that the plaintiff through its employee was guilty of contributory negligence as a matter of law.

In passing upon these motions the evidence must be viewed in the light most favorable to the plaintiff. Kennedy v. Laramee, 115 Vt. 358, 61 A.2d 547; Terrill v. Spaulding et al, 115 Vt. 342, 61 A.2d 611; Jarvis, Admr. v. Byrnes, 115 Vt. 346, 61 A.2d 543. The effect of modifying evidence is to be excluded. Cobb v. Olsen, 115 Vt. 266, 268, 56 A.2d 471; Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145.

Viewed in this light the evidence tended to show the following facts: The highway consisted of two cement strips, each approximately 10 feet wide, with hard surface gutters on each outside. These were slightly lower than the cement surface and each had a curb on the outside. The overall width was 22 1/2 feet and was all usable. The width of plaintiff's trailer was 8 feet and that of defendant's truck 7 feet 8 inches. The plaintiff's trailer truck was proceeding northerly up a grade around a curve to its right at a speed of 40 to 45 miles per hour. The defendant's truck was proceeding in the opposite direction down the grade around the curve to its left at a speed of 30 to 35 miles per hour. The driver of plaintiff's vehicle saw the defendant's truck when about 300 feet away. At that time his trailer truck was on its right side of the highway and the defendant's truck was in its center. As the two vehicles approached each other, the defendant's truck proceeded over to its left and more to the plaintiff's side of the highway. When the plaintiff's driver saw this he applied his brakes at a point when the wheels of the trailer were at least 68 feet from the point of collision. He pulled to his right so that the right hand wheels of the tractor scraped against the curb until stopped after the collision. It was 52 feet from the place of collision to the wheels of the trailer after it was stopped. When the brakes were applied the outside left wheel of the trailer was just on the center line of the highway; but as the driver proceeded with the right wheels of the tractor scraping the curb the wheels of the trailer drew over to the left so that at the point of collision the outside left wheel was 11 1/2 inches to the left of the center line. The defendant's driver heard the brakes when they were applied and he first saw the plaintiff's vehicle when about 100 feet away. He then turned his truck to his right and applied his brakes but not enough to slacken speed. When a few feet from the point of collision he saw the rear of the trailer bearing to its left over the center line. He was far enough then to his right so that the truck cleared the tractor and the front part of the trailer. He made no further effort to pull more to the right, but chose to drive into the left rear of the trailer or trust that he would not hit it. His left front wheel did hit the left side of the trailer near its rear end. After the collision it was discovered that the left torque arm or radius rod of the trailer was broken, the right one bent and the wheels out of line to the left. A flaw was discovered in the broken arm which showed about 50% rust and 50% clean break. This flaw could not have been seen before the arm broke. In rounding a curve to the right the left wheels of the trailer would normally travel about six inches to the left of the left wheels of the tractor. If the torque arms were broken and bent as discovered after the collision the trailer wheels would travel more to the left. The plaintiff's driver did not know and had no reason to know that the left wheels of the trailer were going over the center of the highway. Although the collision may have aggravated matters, the fair inference is that the trouble with the torque arms antedated the collision and that, except for the breaking of the arm, the trailer would have been upon its own side of the highway when the defendant's truck passed.

The only claim of the defendant is that the driver of the plaintiff's vehicle was guilty of contributory negligence as a matter of law because he violated paragraphs I, VIII and IX of P. L. 5110, now § 10,219 V. S. rev. 1947. These read as follows:--Par. I. "Operators of vehicles proceeding in opposite directions shall exercise due care and shall each keep to the right of the center of the highway so as...