Joseph A. Abel, Admr. Est. of Russell C. Jones, Jr. v. Louis Salebra
| Decision Date | 05 October 1948 |
| Parties | JOSEPH A. ABEL, ADMR. EST. OF RUSSELL C. JONES, JR., v. LOUIS SALEBRA |
| Court | Vermont Supreme Court |
May Term, 1948.
Gross Negligence.
1. It has been found by experience that the decided cases are of small assistance in determining whether the evidence in a given case tends to show gross negligence; each case must stand mostly on its particular facts, considered in the light of accepted principles of law.
2. In determining whether the issue of gross negligence is for the jury, the test to be applied is whether there is evidence from which the jury would be justified in finding that the defendant's conduct was the result of an indifference to his duty to his guest or an utter forgetfulness of the latter's safety.
3. The mere fact that a motor vehicle skids does not of itself constitute negligence on the part of the operator.
4. Evidence of skid marks, of damage done and of distance travelled by a car after collision or leaving the highway may make a jury question of the issue of gross negligence regardless of the direct testimony.
5. The testimony as to prudent driving just before an accident and as to the failure of a guest to protest regarding the management of the vehicle are for consideration on the question of speed, but are not necessarily conclusive.
6. A guest is not negligent in riding with an intoxicated driver if he is unaware of the intoxication or does not notice facts which would arouse the suspicions of a person of ordinary prudence.
ACTION OF TORT based upon gross negligence in operation of a motor vehicle. Trial by jury, Rutland County Court, September Term 1947, Black, J., presiding. Verdict and judgment for the plaintiff, with exceptions to the defendant.
Judgment affirmed.
Vernon J. Loveland for the defendant.
Bloomer & Bloomer for the plaintiff.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
This accident occurred early in the morning of June 8, 1945, on the highway leading from the village of Castleton to the City of Rutland. The plaintiff's intestate was a guest passenger in an automobile driven by the defendant. The issues to be decided are whether the trial court committed error in denying the defendant's motions to direct a verdict in his favor, and to set aside the verdict rendered for the plaintiff. Both motions were based upon the same grounds; that there was no evidence fairly and reasonably tending to show that the defendant was guilty of gross negligence as required by P. L. 5113 (Vt. Stats. Rev. 1947, § 10,223); and that the evidence conclusively showed that the plaintiff's intestate was contributorily negligent, and assumed the risk of injury.
The plaintiff's intestate, the defendant and three companions, two of whom were called as witnesses, left a resort known as the Little Club, in Hampton, New York, across the State line from Fair Haven, Vermont, at about one o'clock in the morning. They went in two automobiles, the plaintiff's intestate and the defendant were in the first one, and the others followed in the second at a distance of between 100 and 300 yards. They drove east through the villages of Fair Haven and Castleton. After leaving the latter place the road proceeds through an underpass and then over a cement bridge. About a quarter of a mile beyond there is another bridge, after which the grade ascends for at least 75 feet and then enters a very sharp curve to the right. At this point the ground on the right or south of the highway rises and the road is protected by a stone retaining wall and crib-work of logs. On the left or north side of the highway there is a precipitous drop of 100 feet to the Castleton River covered with trees and bushes and there is a guard fence along the edge consisting of wooden posts, eight to ten inches in diameter, set in the ground and connected by two wire cables, two inches in circumference. The cement surface of the road is 20 feet wide and there is a shoulder on each side. On the night in question the surface was dry. So far as appears no other traffic than the two automobiles mentioned was in the vicinity.
According to his own testimony the defendant was driving at the rate of 40 to 45 miles an hour. He was familiar with the road. His car had been recently inspected and was in good condition, with the brakes working properly; the plaintiff's intestate made no comment concerning his management of the vehicle; the car was a Ford convertible roadster, with the top down. As it entered the curve the rear end began to sway, which he attributed in part at least to the presence of loose dirt that might have been upon the concrete, which he did not see. The car went out of control, skidded first to the left side of the highway, then back to the right, again to the left, and went through the guard fence and down the declivity towards the river. The defendant did not remember applying the brakes although he said he might have done so. Two of the occupants of the second car testified that, as the skid began, dust arose behind the defendant's car. They also corroborated the defendant's testimony as to speed although the one who was driving said that, while his speed was approximately the same, he did not look at his speedometer.
An inspector of the Motor Vehicle Department arrived at the scene shortly after the accident. As it was dark he blocked off half of the road so that there would be no danger of interference by passing vehicles with the marks on the road which were visible, and remained there until daylight when he was joined by another inspector. The two examined the vicinity, made measurements, prepared a rough diagram and took photographs. Their investigation resulted in the discovery of a broad, single skid mark, four to six inches wide, which began on the extreme northerly, or, as the defendant's car was travelling, left edge of the road, about seventy-five feet easterly from the bridge, and extended for a distance of sixty-four feet, in which six posts of the guard fence were broken off at the ground. One of the inspectors determined that this mark had been made by one of the left tires of the car. At the end of this mark there was an interval of thirty-one feet and ten inches in which no indication of skidding appeared, after which space another skid mark began at a point seven feet three inches from the southerly, or right hand, side of the road, one hundred and eight feet long, which curved first to the right and then diagonally across the road to the left until it reached the place where the car broke through the guard fence and went over the bank. It was open to the jury to find that this mark was caused by one or both of the right hand tires of the automobile. Still another skid mark was found, parallel with the one just described and on the left of it at a distance corresponding to the width of the car which ended at the place where the automobile left the road and extended back from that...
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