Lavallee v. Pratt, 343

• Citation: 166 A.2d 195,122 Vt. 90
• Decision Date: 01 November 1960
• Docket Number: No. 343,343
• Parties: Ronald LAVALLEE, b.n.f. Albert O. Lavallee, v. Paul S. PRATT, Alice M. Pratt and Collins Dairy, a partnership.
• Court: United States State Supreme Court of Vermont

Page 195

166 A.2d 195

122 Vt. 90

Ronald LAVALLEE, b.n.f. Albert O. Lavallee, v. Paul S. PRATT, Alice M. Pratt and Collins Dairy, a partnership.

No. 343.

Supreme Court of Vermont.

Nov. 1, 1960.

Reargument Denied Nov. 29, 1960.

John B. Harrington and John H. Jackson, Burlington, for plaintiff.

Leary & Leddy, Burlington, for defendants.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.

HOLDEN, Justice.

The plaintiff, Ronald Lavallee, a boy of nine, was injured when he fell from a dairy delivery truck. The vehicle was owned by the defendants and operated by Richard Greene, a route salesman employed by the defendants.

The truck was equipped with a walk-in panel body with doors at the side and rear. Below the rear doors and at a height of about two feet from the street surface was a rear step or platform. The delivery conveyance was operated by the driver from a standing position and was referred to in the evidence as 'a 1957 Chevrolet milk truck, standup driving.'

The accident occurred on July 30, 1957. Greene stopped his truck on the left, or south side of the highway to make collections from customers who resided at 23 Allen Street in the city of Burlington. It could be inferred from the evidence that the vehicle was left with the motor running.

The plaintiff and another boy named McLeod saw Greene enter the house, as they were walking toward the rear of the truck. They sat on the rear step to await the driver's return. The doors at the rear of the truck were closed. The plaintiff stated it was his intention to ask the driver for some ice, although his companion intended to hitch a ride. Greene returned to his truck in about five minutes. The plaintiff testified he did not know of the driver's return.

Greene was called as a witness by the plaintiff. He testified that as he returned to his truck he could see the rear of the vehicle. He saw children congregated around the front door of the truck and found other children inside the conveyance. He did not remember whether the plaintiff was included among those he observed in and about his vehicle. When asked concerning what action he took in respect to the children, the witness responded that 'he ran them back to the sidewalk and told them to leave the vicinity of the truck. * * * I marked the collection book and then left.' Later Greene was asked by counsel for the defendants if he could see children around the rear of the truck when he was instructing the children to get away from the vehicle. The witness replied 'I had just come by the rear. I wasn't looking at the rear.'

The McLeod boy jumped after the vehicle had proceeded 20 feet. The evidence is not clear whether the plaintiff jumped or fell. Regarding this contradiction in its most favorable aspect to the plaintiff's claim, as we are bound to do in reviewing the ruling made below, Batchelder v. Birchard Motors Inc., 120 Vt. 429, 430, 144 A.2d 298, the jury might have found that the plaintiff fell and was injured by the force of his propulsion to the ground from the moving truck.

The driver testified he did not know the children were on his truck at the time it left the curb. He was informed of the accident two or three hours later. It appeared from the evidence that Greene had operated this particular route since the preceding February. The plaintiff inquired of Greene as to whether he customarily and regularly encountered difficulty on Allen Street with the children approaching, getting on or being about the truck. On objection the question was reframed and the driver was asked if he had encountered difficulty with children around his truck at this location. The question was excluded and proper exception was preserved.

The question should have been allowed. It had bearing on what the driver might reasonably anticipate from youthful intruders in the vicinity of the accident. Dent v. Bellows Falls & Saxtons River Street Rwy. Co., 95 Vt. 523, 530, 116 A. 83; Lindsay v. Canadian Pacific Railroad Co., 68 Vt. 556, 567, 35 A. 513.

At the conclusion of the plaintiff's evidence on the issue of liability the trial court granted the defendants' motion for a directed verdict. The motion was not concerned with contributory negligence and did not raise the issue of causation. Other than to point out that the driver had no authority to permit the plaintiff to ride, a fact conceded by the plaintiff, no question of agency was involved. The motion was founded on the thesis that the plaintiff was a trespasser to whom the defendants owed no duty of care other than to refrain from wilful and reckless disregard for his safety. The correctness of this position, which the trial court adopted, is the controlling question on this appeal.

It is fundamental in the law of negligence that liability will not be incurred unless the relation of the parties is such that the person sought to be charged owes a duty of care to the person injured. Charron v. Canadian Pacific Railroad Co., 115 Vt. 225, 228, 55 A.2d 614; Chicoine v. Cashman, Inc., 108 Vt. 133, 136, 183 A. 487; Amblo's Adm'x v. Vermont Associated Petroleum Corp., 101 Vt. 448, 450, 144 A. 460. The rule upon which the defendants rely has been applied to protect the owner or occupier of land from liability for injuries inflicted upon an unknown trespasser from a static but dangerous condition on the premises. Bottum's Adm'r v. Hawks, 84 Vt. 370, 373, 79 A. 858, 35 L.R.A.,N.S. 440; Amblo's Adm'x v. Vermont Associated Petroleum Corp., supra, 101 Vt. 448, 451, 144 A. 460.

We take it that the plaintiff was a trespasser for he went upon the delivery truck without invitation or authority from the defendants or their driver. The fact that the delivery truck may have held some special attraction to a boy of nine does not improve his status as an intruder since the doctrine of attractive nuisance has found no acceptance in this jurisdiction. Bottum's Adm'r v. Hawks, supra, 84 Vt. 370, at page 384, 79 A. 858; Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306.

Justice Holmes reminds us that a trespasser is not an outlaw. The owner of property may render himself liable to a trespasser by an act done in his presence if it is sufficiently clear that danger should have been foreseen. Palmer v. Gordon, 173 Mass. 410, 53 N.E. 909, 910. The fact that the plaintiff was a trespasser will not excuse the actor from the duty of reasonable care for his safety if his presence was known or should reasonably have been anticipated. Waterlund v. Billings, 112 Vt. 256, 260, 23 A.2d 540; Dent v. Bellows Falls & Saxtons River Street Rwy. Co., supra, 95 Vt. 523, at page 530, 116 A. 83; Lindsay v. Canadian Pacific Railroad Co., supra, 68 Vt. 556, at page 567, 35 A. 513; Amblo's Adm'x v. Vermont Associated Petroleum Corp., supra, 101 Vt. 448, at page 451, 144 A. 460, is to the same effect.

The defendants' driver disclaimed any knowledge that the plaintiff and his companions were on the rear of his truck when he put the vehicle in motion. Yet a construction of the evidence favorable to the plaintiff locates the boys in plain view of Greene as he returned from his visit to 23 Allen Street.

It is also significant that the driver found children congregated in and about his truck upon his return. The presence of children close by a vehicle in motion or about to get under way is a danger signal that should not be ignored and calls for the exercise of care commensurate with this warning. Callahan v. Disorda, 111 Vt. 331, 337, 16 A.2d 179; Parker v. Gunther, 122 Vt. 68, 164 A.2d 152, decided at the last term. In Robinson v. Cone, 22 Vt. 213, 225, Chief Judge Redfield reasoned that a teamster encountering a child of four, improperly coasting in the highway, 'was bound to the utmost circumspection, and to see to it that he did not allow his team to acquire such impetus after he saw the child that he could not check them, or avoid injury to the child.' See also Dervin v. Frenier, 91 Vt. 398, 400, 100 A. 760; annotation in 30 A.L.R.2d 102.

The particular problem of a child trespasser injured by falling from a moving vehicle has resulted in a conflict of authority in the several jurisdictions where it has been presented. 60 C.J.S. Motor Vehicles § 401, p. 1021; 5A Am.Jur., Automobiles and Highway Traffic, § 489, p. 537. There is support for the proposition that a driver, when confronted by children in and about his vehicle, discharges his full duty as a matter of law by ordering the children to a position of safety. Coffey v. Oscar Meyer & Co., 252 Wis. 473, 32 N.W.2d 235, 3 A.L.R.2d 753, 757; Abbott v. Railway Express Agency, 4 Cir., 108 F.2d 671, 673. On the varying facts and circumstances of this case we are not prepared to accept this particular formula as dictating the presence of reasonable care or the want of it. Liability in negligence does not lend itself to exact definition or patterns of behavior that may have predominated at an earlier misadventure. The practical requirements of the prudent man rule differ with the setting of the accident and the participants. Farrell v. Greene, 110 Vt. 87, 91, 2 A.2d 194; Aiken v. Metcalf, 90 Vt. 196, 199, 97 A. 669.

The rule advocated by the defendants to the effect that the operator owes no duty of care to an infant trespasser beyond that of refraining from wilful and reckless disregard for his safety finds support elsewhere, notably in Jaegar v. Sidewater, 366 Pa. 481, 77 A.2d 434, 435; Barrett v. H. P. Hood & Sons, Inc., 338 Mass. 789, 154 N.E.2d 903, 904; Gamble v. Uncle Sam Oil Co. of Kansas, 100 Kan. 74, 82, 163 P. 627, L.R.A.1917D, 875. But the rule of these cases fails to observe the distinction long recognized in the decisions of this Court where the trespasser's presence is forewarned and he is injured by a force negligently set in motion by the hand of the owner or occupant whose property has been overstepped. Waterlund v. Billings, 112 Vt. 256, 260, 23 A.2d 540; Lindsay v. Canadian Pacific Railroad Co., supra, 68 Vt. 556...