Kremer v. Fortin, 305
| Decision Date | 04 October 1955 |
| Docket Number | No. 305,305 |
| Citation | 117 A.2d 245,119 Vt. 1 |
| Parties | Samuel KREMER v. Robert FORTIN. |
| Court | Vermont Supreme Court |
A. Pearley Feen, Philip W. Hunt and Paul D. Sheehey, Burlington, for plaintiff.
Edmunds, Austin & Wick, Burlington, for defendant.
Before JEFFORDS, C. J., CLEARY and CHASE, JJ., and HOLDEN and SHANGRAW, Superior Court Judges.
This is an action of tort arising out of an automobile accident. The case is here on exceptions of the plaintiff to the granting of the defendant's motion for a directed verdict and to the judgment for the defendant. The motion was granted both on the ground of no negligence as a matter of law on the part of the defendant and of contributory negligence on the part of the plaintiff.
The evidence viewed in the light most favorable to the plaintiff, as it must be in determining whether error was committed, tended to prove the following material facts: The accident occurred on January 27, 1953 at about 6:30 p. m. in the intersection of St. Paul and Cherry Streets in the city of Burlington. The plaintiff's car was traveling south on St. Paul and a fire truck, driven by the defendant, was traveling west on Cherry.
As the plaintiff started south on St. Paul after turning off Pearl Street he was traveling at fifteen to twenty miles an hour. It was dark and the road was dry. As the plaintiff was going down St. Paul he was following another car by from twelve to fifteen feet.
Before reaching the cross walk at the intersection of the two streets the plaintiff looked to his right and to his left as far as he could see. At the northeast corner of the intersection there was a service station which was set back from the northerly line of Cherry Street just a few feet and it obstructed the view to the left on that street. The plaintiff looked to his left when he was about ten or twelve feet from the cross walk and at that time saw no lights coming toward him on Cherry Street.
As the plaintiff was coming toward the cross walk he slowed to ten or twelve miles an hour and when the front end of his car was at the cross walk he looked to his left again and, for the first time, saw the fire truck and at the same time heard a fire siren. The truck was then a short distance away, about seventy five feet.
When the plaintiff saw the truck he did not think that he could pull to the side and stop without blocking the intersection. He attempted to increase his speed a bit, to the extent that he could in view of the car ahead. As the plaintiff crossed the intersection the truck appeared to veer to the left to a slight extent and struck the plaintiff's car when the front of the car was past the center of the intersection. The right front of the truck struck the left side of the car at about where the driver sits. The truck pushed the car over the curb at the southwest corner of the intersection and through two cement posts holding a street sign and a mail box. The truck pushed the car this distance before the defendant could stop the truck. The point of impact was a few feet to the north of a manhole cover which was in the center of the intersection. There were skid marks in the road from the point of impact to the rear of the truck.
Before reaching the intersection the defendant had driven through the Church Street intersection and then picked up speed. He testified that he was traveling around twenty five miles an hour and that at that speed he thought he could stop in twenty five feet.
As the defendant approached the St. Paul Street intersection he started to slow up by letting up on the accelerator a little. He did not apply the brakes. When he saw the car the defendant was between twenty five and thirty feet from the intersection and he did not think the plaintiff was going to stop but he did not start to apply his brakes until he was at the cross walk. Before hitting the car the defendant turned to his left.
The siren on the truck was sounded for the Church Street intersection, then it stopped and started up again when the truck came toward St. Paul Street. The truck must have been pretty nearly at the corner of St. Paul and Cherry Streets when the siren was sounded a second time. No bell was being rung.
We will first consider the question of contributory negligence, V.S. 47, § 10, 219 subdivision II No. 242 of the Acts of 1949 reads as follows:
At the time of the accident the fire truck was responding to a still alarm. The evidence is undisputed that as it proceeded to the fire its siren was being sounded and that it could be heard for a great distance; for two miles when atmospheric conditions were right.
Witness Lines, who was driving his car from a place on Pearl Street along that street and then from its intersection with St. Paul Street along the latter, first heard the siren as he turned from Pearl into St. Paul. At the time he made the turn the plaintiff's car was about the middle of the city block to Cherry Street ahead of him. The plaintiff's car did not stop.
Witness Edyth Bushnell who occupied an apartment in a building on the southwest corner of St. Paul and Cherry Streets testified that she was looking out of a window at the time of the accident. She saw the plaintiff's car as it traveled down St. Paul all the way from Pearl Street. She noticed this car in particular as it kept on coming, whereas other cars on St. Paul and even on Pearl drew up to the side 'when they heard the engines coming, not knowing just what direction they were coming from.' She could clearly hear the siren even though the windows in the room were closed. She first heard the siren when it sounded for the intersection of Church and Cherry Streets. On cross examination she testified in substance as set forth in the last paragraph of the statement of facts most favorable to the plaintiff above set forth.
To impose upon the driver of a vehicle the duty of pulling to the right of the lane of traffic and coming to a complete stop until an emergency vehicle which is sounding its siren has passed, notice to him must be given of its approach so that he has a reasonable opportunity to comply with the statutory requirements in this respect. Balthasar v. Pacific Electric Ry. Co., 187 Cal. 302, 202 P. 37, 19 A.L.R. 452, 458. Baltimore Transit Co. v. Young, Md., 56 A.2d 140....
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