Leonard v. Henderson

• Decision Date: 06 October 1953
• Docket Number: No. 237,237
• Citation: 99 A.2d 698,118 Vt. 29
• Court: Vermont Supreme Court
• Parties: LEONARD v. HENDERSON.

Page 698

99 A.2d 698

118 Vt. 29

LEONARD v. HENDERSON.

No. 237.

Supreme Court of Vermont.

Oct. 6, 1953.

Reginald B. McShane, Lyndonville, for plaintiff.

Witters, Longmoore & Akley, St. Johnsbury, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

SHERBURNE, Chief Justice.

The plaintiff seeks in this action to recover for personal injuries received in an automobile accident on December 6, 1950, while attempting to pass the defendant. The cause comes here upon plaintiff's exceptions after a verdict and judgment for the defendant.

The defendant had been traveling northerly in Lyndon on U. S. route 5, a two lane resurfaced cement highway, and was carrying children home from school in a station wagon type of school bus. He had gone around a curve to the right and was traveling at about 30 miles per hour when about to enter a long straight stretch at a point about 165 to 170 feet southerly of the south end of the dooryard of James D. Chamberlain, which was located on the west, or the defendant's left, side of the highway. From this point he drove into the left lane directly toward the south end of the dooryard, and slowing donw to 25 miles per hour started to drive in to leave Mr. Chamberlain's daughter. When all but his right rear wheel was off the pavement he was sideswiped on the left side from behind by the car driven by the plaintiff, which went out of control past the defendant, skidded sideways across the frozen gravel surface of the yard and struck with great force against a tree near the highway. This car when traveling at 40 to 50 miles per hour was driven off the left side of the pavement at a point a little southerly from where the defendant drove off the pavement and 170 feet southerly of the tree, and turned into a skid when 150 to 155 feet from it. The accident happened at 4:30 P.M. There was no snow on the ground and the weather was clear.

Sergeant Fletcher of the state police who investigated the accident, having testified in direct examination concerning the skid marks made by plaintiff's car, and having testified on cross-examination that these marks were made by going sideways and were not the characteristic marks made by the application of brakes, and that the distance skidded and the damage to the car when it struck the tree were evidence of speed, was asked: 'Could a car with adequate brakes, going 50 miles an hour, have been stopped, in your opinion, by the application of brakes in less than 170 feet and 3 inches,' Subject to the objection that there was no evidence of the application of brakes, the witness answered: 'I wouldn't think so.' Later in redirect examination he testified that the plaintiff's car was traveling at least 40 to 50 miles per hour, and in his opening statement to the jury plaintiffs counsel stated this speed to be 40 to 50 miles per hour. There was no dispute about this speed. If error it is not shown to have prejudiced the plaintiff.

Sergeant Fletcher having testified that he was familiar in a general way with the road shoulder on both sides of the highway in the vicinity of the Chamberlain place, was asked: 'Is there a shoulder three or five feet wide that can be safely traveled from the point where the side road leads off southerly of the Chamberlain house, up to a point beyond the house?' Subject to the objection that the question called for a conclusion as to whether or not it is safe to travel along the shoulder, the witness answered: 'I know that there is a shoulder there, I don't know how wide it is in various parts, I would expect probably at least three feet wide anyway.' The question was unanswered as to whether the shoulder can be safely traveled. The plaintiff admits that the answer standing alone does not constitute an expression of opinion, but argues that the question and answer taken together have that effect. We do not agree. If error, it was harmless. See Rowley v. Shepardson, 85 Vt. 266, 269, 81 A. 917.

Douglas Henderson, a son of the defendant, a graduate of Lyndon Institute in 1950, was riding on the school bus at the time of the accident. Having pointed out on a plan of the locality the point from where the school bus, after rounding the curve southerly of the Chamberlain premises, traveled entirely in the left lane, and having testified that from that point on the right hand lane was clear of traffic until they went into the dooryard, was asked: 'Do you know of anything that would have prevented a car proceeding north from that point on from having the whole of the right hand lane in which to travel?' Subject to the objection that the question called for a conclusion, the witness answered: 'No, I can't think of any possible reason.' The situation is unlike that in Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 210, 147 A. 346, 66 A.L.R. 1109 cited by the defendant and Spinney's Adm'x v. O. V. Hooker & Son, 92 Vt. 146, 152, 102 A. 53 cited by the plaintiff. In view of the testimony of the witness that the right lane was clear of traffic until the school bus went into the dooryard there was no observable physical condition that prevented a car from using the right lane unless that lane was obstructed in some manner. Viewed in this sense the question did not call for a conclusion. In support of his exception the plaintiff does not call our attention to V.S. 47, § 10,219, subd. V, which makes it unlawful, when overtaking another vehicle while proceeding in the same direction, to pass on its right, or make any claim that he had no reason to know that the school bus might not turn back into the right lane. If these matters were comprehended in his objection and made the question objectionable he should have called them to our attention. Error is not made to appear.

The defendant testified without objection that his school bus was equipped with a side mirror which was so adjusted that he could see to the rear, and also a rear view mirror on the inside; that as he approached the Chamberlain house and before starting to cross over into the left lane he looked in the side mirror, and didn't see any car behind him, but would have seen one if within the range of his view; that this side mirror was broken in the accident and that he had replaced it with a similar one; that during the trial, in the morning before court on Friday, August 8, 1952, he and Messrs. Chamberlain, Witters, Longmoore and Bohlen placed his bus as nearly as he could in the same location it was in when he started to cross over into the left lane on December 6, 1950; that he adjusted the mirror as nearly as he could as it was adjusted on that occasion; that he, Bohlen and Chamberlain observed the view of a person in the driver's seat through the mirror; that Bohlen made some measurements to a car behind which was driven by Mr. Longmoore and was placed on the same side of the highway about 300 feet behind the bus at a point where it first came into view as the defendant looked in his mirror; and that he could see the full width of the road back to that car. On cross-examination the defendant testified that he had the same clear view of 300 feet on the night of the accident as on that morning, and on redirect that the inside rear view mirror was adjusted so that he could see the children and that he couldn't see as far with it as with the side mirror. He was then asked if on that Friday morning the rear view mirror on the side was adjusted as it was at the time of the accident, and the witness answered: 'Yes, it was.' After which the plaintiff objected on the ground that the evidence was immaterial, irrelevant and incompetent. The court noted that the answer was already in the record and stated: 'We will allow the answer, you may have an exception.' On recross-examination the defendant testified that the weather conditions were about the same on the Friday morning as on the afternoon of December 6, 1950, and that the visibility was about the same.

Over the objection that it was immaterial, irrelevant, incompetent and self serving, Mr. Bohlen, a civil engineer who had made a plan of the locality which was admitted as an exhibit, testified to the effect that as the defendant spotted the bus on that Friday morning the front left hand wheel was about 8 inches to a foot on the easterly side of the center of the highway; that he sat in the driver's seat of the bus after it was so spotted, looked in the side rear view mirror and waited until he could see the entire Longmoore car, which was proceeding slowly in the east lane behind and toward him, at which time it was immediately stopped through a pre-arranged signal to Mr. Witters and he to Mr. Longmoore; that after the car had been so stopped he could see the entire car, but could not see back of it because of the curve, and that measured along the center line of the highway it was 295 feet from the rear of the bus to the front end of the car. The witness scaled and sketched on the plan the locations of the bus and Longmore car as so spotted. On cross-examination he testified that he could not see any portion of the right or east lane of the highway beyond the Longmoore car because the view was obstructed by the side of the bus. Subject to the same objection, Mr. Chamberlain testified to being present on the Friday morning when the bus and Longmoore cars were stopped and to sitting in the drivers' seat of the bus, and that as he looked in the mirror the front end and left hand side of the Longmoore car were entirely in his view.

No question is raised that the highway had been changed between the dates of the accident and experiment. Although not claimed to be conclusive it is pointed out that the accident and experiment were separated by an interval of 20 months. Although admitting that there was testimony from several witnesses that at the time of the accident it was light enough to see approaching traffic without lights, in fact the ambulance driver didn't have his lights on in going to...