Luce v. Chandler, 1635.
| Decision Date | 12 November 1937 |
| Docket Number | No. 1635.,1635. |
| Citation | 195 A. 246 |
| Parties | LUCE v. CHANDLER. |
| Court | Vermont Supreme Court |
Exceptions from Washington County Court; John S. Buttles, Judge.
Suit by F. C. Luce against C. P. Chandler. Verdict and judgment for defendant. On plaintiff's exceptions.
Judgment reversed, and cause remanded.
Argued before POWERS, C. J., SLACK, MOULTON, and SHERBURNE, JJ., and SHERMAN, Superior Judge.
Finn & Monti, of Barre, for plaintiff. A. C. Theriault, of Montpelier, and Wilson, Carver, Davis & Keyser, of Barre, for defendant.
The plaintiff brought suit for injuries suffered by him in an automobile accident that occurred on February 18, 1935. Verdict and judgment for defendant, and exceptions saved by plaintiff.
The location of the accident was upon the main highway between Burlington and Montpelier where it runs nearly north and south a short distance southerly of the village of Richmond and by the dwelling of one Whitcomb, and at a spot very nearly in front of said dwelling. The defendant was driving southerly along the highway, and the automobile in which the plaintiff was riding was pursuing a northerly course with a young man by the name of Scribner at the wheel.
This highway is nearly straight for some distance in both directions from the Whitcomb house, and from the north there is a slight rise some 3 feet going towards the house a distance of 400 feet and after passing this rise, which is at a level for 100 feet, the road drops 16 feet in a distance of 400 feet, then goes on southerly for several hundred feet practically at a level. It results from this change of grade that the occupants of an automobile going north over an undetermined portion of the highway south of the house cannot see an automobile coming from the north towards them when the latter is on a certain portion of the highway north of the house, and, conversely, the occupants of the automobile coming from the north cannot see the automobile coming from the south for a distance.
Upon the day of the accident there was some ice in the highway. It was thawing and portions of the highway were bare. The evidence of the manner in which the accident happened as given by the defendant was in effect that as he was driving southerly from the village of Richmond he overtook another car driven by one Overrocker, and as he came into a straight strip of road he gave a signal to pass and looked ahead to see if the road was clear and saw no one; that he was then driving about forty miles an hour; that Overrocker turned to his right, but as defendant tried to pass the former went faster and defendant, in order to pass, increased his speed to about fifty miles per hour; that he did not know of the dip in the road, but as he approached it he saw plaintiff's car coming on its own side of the road. Defendant immediately applied his brake; his car switched to the right and to keep from hitting the Overrocker car he pulled to the left and went into the ditch, so that his car was about at right angles to the road with the front of the car in the left ditch and extending about half its length in the highway, and while in this position the Luce car struck his. He also stated he did not think the Luce car was traveling very rapidly when he first saw it; that he did not see the Luce car skid and did not know what happened to the Overrocker car.
Mr. Scribner, who was driving the car plaintiff was riding in, testified in substance that he was traveling on his side of the road going northerly at about 20 to 25 miles per hour when he saw the Overrocker car on his left approaching; that he hoard a call for the road and the defendant pulled up in back and attempted to pass the Overrocker car directly ahead of him; that the defendant had apparently applied his brakes; that defendant's car swung to his right and then to the left and then to the right again; that the forward wheels seemed to hang right over a cement culvert and switched directly into him striking his front wheel; that when he saw the Chandler car in his path he took his foot off the accelerator and did not apply his brake because of the slippery condition of the road; that he had seen what effect this had on defendant's car putting defendant's car out of control; that the defendant was coming on his right and that his only chance was to pull in back of the Overrocker car as it went by him; that he tried to pull his car in between the other two cars. He stated at the time the cars came together his car was going five miles an hour and later changed it to about ten.
At the close of all the evidence the plaintiff moved for a directed verdict in his favor on the question of liability only, upon four grounds, briefly stated as follows:
1. That the undisputed evidence shows that the defendant is guilty of negligence which is the sole and proximate cause of the injury;
2. That the plaintiff was not guilty of contributory negligence which in any degree contributed to his own injury;
3. That the negligence, if any, of Mr. Scribner, driver of plaintiff's car, was not imputable to the plaintiff;
4. And even if such negligence, if any, were imputable to the plaintiff, there was no negligence in handling the Luce car, which in any way contributed to the cause of the accident, invoking the emergency rule. The motion was overruled subject to an exception by plaintiff.
Taking up first the third ground, which was that the negligence, if any, of Scribner, the driver, was not imputable to plaintiff because he was not acting for plaintiff. The testimony as to the reason Mr. Scribner came to be driving the car in which Mr. Luce was riding as given by Mr. Scribner was as follows:
On the same subject Mr. Luce testified:
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