Lydia Dumont v. Winfield I. Cromie

• Decision Date: 16 October 1925
• Citation: Lydia Dumont v. Winfield I. Cromie, 130 A. 679, 99 Vt. 208 (Vt. 1925)
• Parties: LYDIA DUMONT v. WINFIELD I. CROMIE
• Court: Vermont Supreme Court

130 A. 679

99 Vt. 208

LYDIA DUMONT v. WINFIELD I. CROMIE

Supreme Court of Vermont

October 16, 1925

February Term, 1925.

ACTION OF TORT for negligence.Plea, general issue.Trial by jury at the March Term, 1922, Chittenden County, Willcox, J presiding.Verdict and judgment for plaintiff.The defendant excepted.The opinion states the case.

Judgment reversed and judgment for plaintiff to recover the sum of $762.00 with interest thereon during stay of execution, and costs of suit.

A L. Sherman and Warren R. Austin for defendant.

Chas F. Black for the plaintiff.

Present: WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

WATSON

This action, to recover damages resulting from alleged negligence of the defendant, was brought in the name of the plaintiff by next friend, she then being but seventeen years of age, but on reaching the age of majority before the trial in the court below, she assumed to herself the prosecution of the suit.

At the close of the evidence defendant moved that a verdict be directed in his favor, two assigned grounds being (1) that the evidence does not show any negligence on the part of the defendant, and (2) that the evidence shows negligence on the part of the plaintiff, which contributed to the accident.The motion was overruled to which defendant excepted.The grounds of the motion will be considered in their order.

It appeared that the accident in question happened on March 2, 1921, about eight o'clock in the morning, in the town of Charlotte, on the main road leading from Charlotte Village, known as the "Four Corners," westerly to Lake Champlain; that the location of the accident was on a straight line of highway extending from the crest of the hill at the village, to the crest of the railway right of way at the crossing a little west of Charlotte Depot; that the grade at the location of the accident was quite near level, but at the railroad crossing, from which the plaintiff approached, and at the hill, from which the defendant approached, the land was somewhat higher than where the accident occurred which was 118 feet easterly from the railroad track; that at the time in question the plaintiff, driving a single horse attached to an open buggy, was going in an easterly direction, and the defendant, driving a single horse attached to an express wagon, was going in a westerly direction, over the same highway; that the two wagons collided by the rim of the left fore wheel of plaintiff's wagon and the hub of the left hind wheel of defendant's wagon striking together, resulting in personal injuries to the plaintiff and damages to the buggy and harness; that she had then been living with her parents on their farm in Charlotte for about two years, aiding them in carrying it on; that in so doing she milked the cows, helped in the haying and about the threshing machine, and carried milk to the creamery pretty nearly every day, and helped her mother around the house; that on the morning of the accident she carried the milk to the creamery as usual, leaving home around seven o'clock; that the creamery was located on the west side of the railroad track and south of the highway, running to the "Four Corners," and in order for her to reach the creamery it was necessary to pass westerly along the main highway, cross the railroad track, and then turn to the left to the creamery; and that she was returning to her home over the same highway, in the opposite direction, when the collision took place; that from the railroad track easterly there was a ditch on the south side of the highway and running parallel with it; also a similar ditch though deeper on the north side; that the traveled roadway went practically to the edge of the ditch on each side; that the height of land at the railroad track was six to eight feet higher than in the highway where the accident happened; that at the place of the accident the traveled roadway between the two ditches was twenty-three feet wide, measured from the near edge of each ditch; that the roadway from the "Four Corners" to the creamery was a good one--well kept up, and straight from the railroad track to the "Four Corners."

The evidence bearing particularly on the questions of negligence by the defendant, and contributory negligence by the plaintiff, viewed in the light most favorable to the latter, as it must be in disposing of the motion for a verdict, fairly tended to show that the ditch on the south side of the highway leading easterly from the railroad crossing was four feet deep at a point fifteen or twenty feet east of the railroad, thence growing shallower to about two feet deep at the place of the accident; that the roadbed was somewhat muddy there the day before, but it froze in the night and was frozen--a kind of a crust--at the time of the collision; that the horse then being driven by the plaintiff was a farm horse owned by her father, and had worked both single and double for some years on the farm then owned and occupied by him; that the horse was kind and gentle, safe in anybody's hands, safe and easy for a woman to drive, lazy and not very swift, and had been much driven by the plaintiff during the preceding two years in carrying milk to the creamery; that when the plaintiff started for home from the creamery on the occasion in question her horse trotted until it approached the railroad track, but there came to a walk and walked over the crossing; that being over, the horse started at its ordinary trot--the trot of that horse being, according to the testimony of one witness, a jog or trot "like any common farm horse"--and trotted slowly, "about the same gait," to the place of the accident, and was so trotting at the time of the collision; that when passing over the railroad track the plaintiff saw the defendant's team coming, it then being further beyond the place of the accident than the plaintiff was near to that place, and that his horse was traveling faster than was her horse; that thus knowing defendant's team was coming, the plaintiff, as soon as she was over the crossing, began to guide her horse to the right of the center of the road, continuing gradually to bear to the right until her wagon was running so near the ditch that at the time and place of the collision, the track made by the right-hand wheels was within eight inches of the ditch; that the standard width of such wagons as the plaintiff and the defendant then had, is four feet and eight inches between wheels; that the defendant saw plaintiff's team when it came over the railroad track and continued to see it until the collision, during all which time, not conforming to the law of the road (G. L. 4705), he traveled in the center of the road and so far to the left of the center that, in order for the collision to take place as it did, the left hind wheel of his wagon must then have been running within approximately five and one-half feet of the ditch on his left-hand side of the traveled road which at that place was twenty-three feet wide.

It is asserted in defendant's brief that if he was driving his team at the left of the center, or on his left-hand side, of the road, he had a right so to do, and it was not negligence on his part.Whatever might be said as to the soundness of such proposition where the circumstances are not such as to require the application of the law of the road as declared in G. L. 4705, it is not sound when applied to the circumstances of the present case where the law of the...