Landry v. Hubert

Decision Date13 April 1927
Citation137 A. 97
PartiesLANDRY v. HUBERT.
CourtVermont Supreme Court

Exceptions from Caledonia County Court; Prank D. Thompson, Judge.

Action by Rollande L. Landry against Germaine Prevost Hubert. Verdict for plaintiff, and defendant brings exceptions. Judgment reversed, and cause remanded.

Argued before WATSON, C. J., and POWERS, SLACK, FISH, and MOULTON, JJ.

Samuel E. Richardson and David E. Porter, both of St. Johnsbury, for plaintiff.

Searles & Graves, of St. Johnsbury, for defendant.

MOULTON, J. This is an action in tort to recover for personal injuries sustained by the plaintiff while riding in an automobile driven by the defendant, and resulting from a collision between such automobile and a horse-drawn vehicle loaded with lumber. Trial was had by jury, with verdict for the plaintiff, and the case comes to this court upon exceptions by defendant. We consider these exceptions in the order in which they are briefed.

The negligence alleged in the declaration was: (1) Driving at a careless and negligent rate of speed; (2) failing to keep to the right-hand of the highway; (3) failing to sound the horn; (4) failing to exercise due care while attempting to pass the wagon loaded with lumber; (5) omitting to have the automobile under perfect control; and (6) failing to use due care to avoid accident when approaching a curve. We are concerned here only with the first and fifth grounds above stated.

By the undisputed evidence it appeared that on August 15, 1924, the plaintiff, the plaintiff's sister, and the defendant left St. Johnsbury, in a Dodge coupé, owned by the defendant's father, for Magog, Quebec. The plaintiff and her sister had been invited by the defendant to make the trip, and arrangements had been made by all the three young women to meet certain acquaintances of theirs from Montreal at Magog, where they also expected to meet the plaintiff's father. At about 4 o'clock in the afternoon they came upon a wagon, drawn by a team of horses, loaded with second-hand lumber, and owned and driven by Fred Dwyer, which was standing upon the right-hand side of the highway, headed in the same direction as that in which the automobile was proceeding. The road was somewhat ascending, and the wagon stood upon a slight curve. The defendant turned to the left to pass the wagon, but, as she did so, she observed an automobile approaching in the opposite direction, and turned back to the right, behind the wagon, and came into collision with it from the rear. A slender piece of lumber, which projected beyond the rear of the wagon, passed through the visor and glass windshield of the automobile, struck the plaintiff in the eye, and passed through the glass window, in the rear of the car. The injuries to the plaintiff's eye have resulted in the loss of it, necessitating the wearing of an artificial eye of glass, and she has been otherwise injured.

At the close of the evidence the defendant moved for a directed verdict, and saved an exception to the overruling of the motion. The ground of the motion was that there was no evidence of any actionable negligence on the part of the defendant which was the proximate cause of the accident.

In her brief, the defendant insists that there was no evidence that the car was being driven at a great speed. The declaration alleges a careless and negligent rate of speed. Upon this point the plaintiff testified that the car was going "at a good speed" at the time of the collision. The plaintiff's sister gave the speed at about 18 miles an hour. The defendant testified that, as she drove up the grade, before reaching the place of collision, she thought they were "going about 15 to 18 miles an hour down, but the car lost speed while we were going up." The force of the impact of the wagon bent the bumper on the car, caused the horses attached to the wagon to start, and displaced a part of the load, shoving the boards forward and to one side. In addition to this, the evidence showed that the brakes on the car were loose. The defendant testified that they were not in good shape, and that she had noticed that they were getting a little bit loose on the way; that they "were getting loose every minute," and that she had been noticing that for quite a while; that she "knew there was something wrong with the brakes; they weren't tight as they should have been"; that it was her intention to have them repaired at the first opportunity; that she couldn't stop as soon as she wanted to that time; and that "the brakes were kind of loose, and—well before I bad a chance to think of it, everything had happened when I thought of stopping the car."

With the evidence standing thus, it is apparent that the question of the speed of the car was for the jury. The degree of care and prudence exercised in driving an automobile at any given rate of speed must always depend upon the circumstances. Whether the requisite degree of care in this respect was exercised by the defendant, in view of the evidence as to the condition of the brakes, and her knowledge thereof, the speed as estimated by the inmates of the car, and the effect of the collision upon the car and the loaded wagon, was a question for the jury to decide. McAndrews v. Leonard (Vt.) 134 A. 710, 715.

The defendant also claims that there was no evidence of negligence on her part with respect to the condition of the brakes sufficient to warrant the submission of the case to the jury. In support of this position it is pointed out that nothing is said about the brakes in the declaration. But the declaration charges negligence, not only in driving at a careless and negligent rate of speed, but in failing to have the automobile under perfect control, and defendant admits in her brief that the evidence as to the condition of the brakes was material as having some bearing upon the question of the care exercised by her in operating the car. This is quite true, and we think the declaration is broad enough in its language to permit the plaintiff to claim that, not only as to speed, but as to control, the knowledge of the defendant of the faulty condition of the brakes should be considered as bearing upon the standard of care required under the circumstances. This question, therefore, was for the jury.

It is argued that the defendant was not responsible to the plaintiff for the condition of the brakes, because the plaintiff, as an invited guest, stood no differently than a bare licensee.

As to this, it is sufficient to say that we have held otherwise. An invitation carries with it the assurance of some measure of security, which the driver must make good by the exercise of active care, if necessary (Robinson v. Leonard [Vt.] 134 A. 706, 710, and cases cited), and the defendant owed to the plaintiff the duty of exercising reasonable care and prudence in the operation and control of the car, in view of the known condition of the brakes (Jessup v. Davis [Neb.] 211 N. W. 190, 192).

Nor can it be said as a matter of law that the plaintiff and defendant were engaged in a joint enterprise so that, as defendant claims, any negligence on the part of the latter is to be imputed to the former. Parties are not engaged in a joint enterprise within the meaning of the law, unless there is a community of interest in the object and purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto. McAndrews v. Leonard (Vt.) 134 A. 710, 715; Jessup v. Davis, supra. The theory is that each person so engaged is the agent of the other. Robinson v. Leonard (Vt.) 134 A. 706, 709; Lee v. Donnelly, 95 Vt. 121, 129, 113 A. 542. Taken in the light most favorable for the plaintiff, the evidence tended to show that she was merely an invited guest, without the right to direct or govern the conduct of the defendant. There was no error in overruling the motion for a verdict.

We pass now to several exceptions taken by the defendant to the admission and exclusion of evidence. On cross-examination of Dwyer, the driver of the team, he was asked by defendant's counsel, "You don't think that car hit your wagon, do you?" He answered, "I don't know what it hit; there was something hit my wagon." He was then asked, "You don't think in your own mind that that car hit your wagon, do you, that is, the wagon itself?" which question, upon objection being made, was excluded and an exception taken. Here was no error. The witness had testified, on direct examination, that all he could tell was that, as he was sitting on the load, he heard a crash, his horses started, and the load started under his body; that, after stopping his horses, he looked around and saw the car behind him; that he could not tell whether the car had run into the wagon or into what part of the wagon; that he did not see it strike. The excluded question was practically a repetition of the question which the witness had just answered. It did not tend to impeach the testimony he had already given. The conduct and scope of cross-examination rests largely within the discretion of the trial court, and abuse of that discretion does not appear. State v. Long, 95 Vt. 485, 491, 115 A. 734.

On direct examination, the plaintiff testified that Dr. Boulet, of Montreal, had performed an operation upon her eye. She was then asked "whether or not Dr. Boulet has advised you that it will be necessary for you to return to Montreal again?" Subject to an exception by defendant, she was permitted to answer, "Yes." It is now urged that this was hearsay, and constitutes reversible error. However, this ground for the objection was not stated below, and so this exception, following our often repeated rule, is not considered. State v. Pierce, 87 Vt. 144, 147, 88 A. 740; Donovan v. Towle (Vt.) 134 A. 588, 589.

On cross-examination of the plaintiff's sister, she was asked, referring to the conduct of the defendant: "Now she did everything she could, didn't she, to be careful in...

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