Johnson v. Hoisington, 30-76
| Decision Date | 10 November 1976 |
| Docket Number | No. 30-76,30-76 |
| Citation | 367 A.2d 680,134 Vt. 544 |
| Court | Vermont Supreme Court |
| Parties | Philip L. JOHNSON, Admr. of the Estate of Stephen M. Johnson v. Lynwood P. HOISINGTON. |
Garfield H. Miller of Black & Plante, White River Junction, for plaintiff.
Downs, Rachlin & Martin, St. Johnsbury, for defendant.
Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.
An accident between a motorcycle and a pick-up truck brought about this lawsuit. The rider of the motorcycle was killed, and this action was brought by his representative against the driver of the truck. At the close of the plaintiff's case the lower court granted a motion for a directed verdict in favor of the defendant. This appeal followed.
The motion was granted on two grounds: first, that no negligence on the part of the defendant had been established as a matter of law; and second, that, in any event, the proof as to damages was insufficient. This case did come under the provisions of the comparative negligence statute, 12 V.S.A. § 1036. Although this statute removes the former requirement that a plaintiff establish his own total freedom from negligence, it does not lessen his obligation to affirmatively make out a claim of negligence against the defendant.
The deceased was twenty-one years old and a recently discharged serviceman. On the day of the accident he was proceeding easterly along Vermont Route 44. The defendant was entering Route 44 from a private driveway. He was, at the time, nineteen and driving his father's truck to pick up a bale of hay from the farm at the end of the driveway. The accident happened as he was exiting from the driveway on the return trip. The day was September 26, 1971, and the time between six and six-thirty in the evening.
As the deceased traveled Route 44 from the west approaching the driveway, he disappeared into a dip in which the road curved, not to reappear until he was some 247 feet westerly of the driveway. The defendant had stopped before entering the highway to let traffic pass from both directions, and it is conceded that he intended to cross the eastbound lane and turn left to go west. After he had looked both ways and started into the highway, he saw the deceased approaching from his left at a high rate of speed. He immediately stopped astride the eastbound lane, blocking it, and was struck by the motorcycle. The only suggestion of its speed arose from a speedometer jammed at 76 miles per hour, but it was never established whether the impact or actual speed was responsible for that reading. The weather was clear and the road dry. There was no evidence that the motorcycle made any attempt to cross over into the left lane of travel. The impact pushed the front end of the pick-up to the right several feet.
The evidence was in this posture when the lower court granted the directed verdict. Such a ruling means that, as a matter of law, there is no evidence whose tendency, excluding any modifying evidence, and taking the evidence in the light most favorable to the plaintiff, will justify a plaintiff's verdict. Baldwin v. Vermont Railways, 126 Vt. 70, 72, 223 A.2d 556 (1966). It is when there is an absence of proof that the injury received by the plaintiff was caused by the defendant that a verdict should be directed in favor of the defendant. Sheldon v. Brooks, 130 Vt. 95, 98, 286 A.2d 889 (1971).
In this case the facts have the defendant's truck stopped across the lane in which plaintiff's intestate was traveling after entering from a side road or driveway. See State v. Hogback Mountain Ski Lift, Inc., 122 Vt. 8, 11, 163 A.2d 851 (1960). The question of plaintiff's intestate's speed and the lookout testified to by the defendant were issues for the jury. Beaucage v. Russell, 127 Vt. 58, 62-63, 238 A.2d 631 (1968). However persuasive the state of the facts may be to the presiding judge, a ruling on a directed verdict must be made on...
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