Kelley v. Anthony, 1045.

• Decision Date: 03 October 1939
• Docket Number: No. 1045.,1045.
• Parties: KELLEY v. ANTHONY.
• Court: Vermont Supreme Court

8 A.2d 641

KELLEY

v. ANTHONY.

No. 1045.

Supreme Court of Vermont. Rutland.

Oct. 3, 1939.

Exceptions from Rutland County Court; Samuel H. Blackmer, Judge.

Action by Marion S. Kelley against Dennis J. Anthony for injuries sustained while riding as a gratuitous guest in an automobile operated by defendant. Judgment for the defendant, and plaintiff brings exceptions.

Affirmed.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Asa S. Bloomer, of Rutland, for plaintiff.

Fenton, Wing & Morse and R. Clarke Smith, all of Rutland, for defendant.

JEFFORDS, Justice.

This is an action of tort to recover for personal injuries suffered in an automobile accident. The plaintiff at the time was riding as a gratuitous guest in the car operated by the defendant and brought this action under P.L. 5113 alleging gross negligence.

At the close of plaintiff's case the defendant moved for a directed verdict on the ground, in substance, that the evidence viewed in the light most favorable to the plaintiff, failed to show any gross negligence on the part of the defendant as required by the statute above referred to. The court granted defendant's motion and the only question for review is as to its action in this respect. The plaintiff in her complaint alleged gross negligence on the part of defendant in the way of excessive speed; failure to keep the car under proper control and within the traveled portion of the highway; failure to comply with P.L. 5110, subd. IX, which provides that: "All curves shall be approached and entered with due care to avoid accident, and all vehicles rounding the same shall keep as far to the right hand side of the highway as reasonably practicable and proceed with due care to avoid accident."

The evidence viewed in the light most favorable to the plaintiff, as it must be in considering this motion, discloses that the accident happened at about half past four in the afternoon of November 11th, 1937, on the Lake Road, so-called, about two miles north of Lake Bomoseen. The plaintiff was employed in the store of defendant and had been for about 11 years prior to the time in question. On the day of the accident the defendant invited the plaintiff and her mother to go for a ride and they left Rutland about 2 o'clock in the afternoon. The defendant and his wife were on the front seat, the defendant driving, and the plaintiff and her mother occupied the rear seat. The families were quite friendly and had taken a number of similar pleasure rides together in the past.

They drove over into the state of New York for a short distance and then back into Vermont and at Castleton Corners decided not to return to Rutland by the direct route but by way of the Lake Road. This is a gravel road and on the day in question was dry and smooth. As they drove along the plaintiff, her mother, and Mrs. Anthony visited with each other from time to time and continued to do so up to the happening of the accident. The defendant drove along on his right hand side of the road and was watching the road all of the time.

The car entered a curve to the left at a speed of about 50 miles per hour. It went into this curve on the left hand side of the road and into the gutter. How far the car was to the left of the center when it entered the curve is not shown. One corner of the car seemed to sink suddenly and the car swerved. It is not clear whether this sudden sinking came just before or after the car went into the gutter. It proceeded down the road at about the same rate of speed and kept going all over the road from side to side, from left to right and swaying. It hit a telephone pole and broke and dragged it a short distance and the car finally stopped about 400 feet from the curve and off the right hand side of the road. At the time of the accident there were no other cars in the immediate vicinity. The day was clear with the sun shining at the time.

The only witnesses on the question of liability were the plaintiff and her mother. They both testified, in effect, that there was nothing about the speed of the car nor its operation in any respect that attracted their attention before it entered the curve and began to sway and no complaints or protests were made by either as to speed or anything about the operation of the car.

The description of the curve is very meager. The plaintiff simply referred to it as a "curve." Mrs. Kelley in her direct examination called it a "bend." On cross examination when asked, in substance, if it were not merely a slight curve or bend she replied once that she would call it quite a curve, and again, that it seemed a sharp curve to her. There is no other evidence in the case in regard to the nature of the curve.

Gross negligence has been defined by this Court in Shaw, Adm'r v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139 and in later cases. It is not necessary to repeat what is said therein.

There is no concrete rule by which the existence of gross negligence can be determined for each case must be judged according to its own facts, considered in the light of accepted principles of law. Hall v. Royce, 109 Vt. 99, 192 A. 193; Rich v. Hall, 107 Vt. 455, 459, 181 A. 113.

The burden was on the plaintiff to make out a case warranting the submission of gross negligence to the jury. The question is did she sustain this burden.

The roads in this state are filled with curves of varying degrees. To enter some of them at the speed and in the manner indicated by the evidence might very well warrant a...