Mabelle Bennett v. John Robertson

• Decision Date: 04 March 1935
• Parties: MABELLE BENNETT v. JOHN ROBERTSON
• Court: Vermont Supreme Court

177 A. 625

107 Vt. 202

MABELLE BENNETT v. JOHN ROBERTSON

Supreme Court of Vermont

March 4, 1935

February Term, 1935.

Automobiles---Question as to Driver's Ability To Stop as Properly Excluded Because Not Stating All Conditions---Harmless Error---Trial Court's Ruling as Sustainable on Any Legal Grounds Whatever Ground Such Court May Have Given---Extent of Liability for Negligence---Efficient Intervening Cause Which May Relieve from Responsibility for Original Negligence---Trial---Instruction to Jury as to Effect of Possible Intervening Negligence as Inadequate---Proximate Cause---Duty of Trial Court To Instruct on Every Essential Part of Case---Witnesses---Impeachment by Contradictory Testimony at Former Trial---Necessity of Laying Foundation by Calling Previous Contradictory Statements To Witness' Attention---Different Rule as to Party---Evidence---Relative Weight of Positive and Negative Testimony---Instruction Concerning Circumstances of Case---Negligence---Consideration of Consequences Prudent Man Might Reasonably Anticipate---Guest in Automobile in Suit for Injuries Sustained in Collision as Not Required To Allege or Prove Due Care on Part of Driver---Due Care on Part of Such Driver After Collision on Question of Proximate Cause.

1. In

ACTION OF TORT for negligence to recover for personal injuries received by plaintiff while riding as guest in automobile driven by husband, which, in attempting to go by defendant's car traveling in same direction, came into collision therewith through alleged fault of defendant in turning his car to left, without warning, into car in which plaintiff was riding, whereby plaintiff's evidence tended to show, such car was thrown out of control, going off and on pavement several times as driver sought to regain control and finally rolling completely over and landing on its four wheels about 4 feet to left of road and 250 feet from point of collision, question asked plaintiff's husband on cross-examination as to whether when traveling at speed he was traveling after collision and during time he was traveling distance stated from one side to other, he could have stopped if he had applied brake good and stiff held properly excluded as not stating all conditions.

2. Exclusion of question on cross-examination, if error, held harmless, where cross-examiner had already gotten substantially what his question called for.

3. Supreme Court may sustain ruling of trial court upon any legal grounds, even though that court may have based its ruling upon other grounds.

4. When negligence is established, liability attaches for all injurious consequences that flow therefrom until diverted by intervention of some efficient cause that makes injury its own, or until force set in motion by negligent act has so far spent itself as to be too small for law's notice.

5. Efficient intervening cause, in order to stand as responsible cause of ultimate result, must be new and independent force or agency breaking chain of causal connection between original wrong and that result.

6. If third person's negligence is something that person charged with negligence is bound to anticipate, causal connection is not broken; otherwise chain of causation is broken, and third person's negligence operates as efficient intervening cause.

7. In action of tort for negligence to recover for personal injuries received by wife while riding in automobile driven by her husband as his guest, through alleged negligence of defendant in turning to left and colliding with car in which plaintiff was riding, while it was attempting to go by defendant's car going in same direction, where defendant's evidence tended to show that car driven by plaintiff's husband stayed entirely upon paved surface of road for 200 feet or more beyond point of collision traveling from one side to other, held that defendant was entitled to instruction that, if jury found plaintiff's injuries were caused solely by failure of her husband to handle his automobile properly after contact between his automobile and defendant's automobile, then jury should find for defendant, since owing to distance traveled before final upset, jury under proper instructions might have decided that force set in motion by defendant had spent itself and that, allowing plaintiff's husband sufficient time to recover from sudden peril caused by collision, he would have averted consequences had he acted reasonably.

8. In such action, charge defining proximate cause and instruction that if driver of car in which plaintiff was riding was negligent, such negligence would not preclude plaintiff from recovering, provided jury also found defendant guilty of some negligence contributing to accident as proximate cause thereof, and that plaintiff was free from contributory negligence, held not to call jury's attention sufficiently to effect of possible intervening negligence of plaintiff's driver, and by reason of such lack to constitute prejudicial error.

9. It is duty of trial court to instruct jury upon every essential part of case, and exception to failure of court to charge as to such matters, though not requested, is well taken.

10. Offer to read testimony of witness at former trial, for purposes of impeachment, where witness when it was called to his attention, admitted he had so testified, held properly excluded.

11. Similar offer, where witness' attention had not been called to his former testimony and he had not been given opportunity to admit or deny that he had so testified, held properly refused, testimony being inadmissible because no proper foundation had been laid.

12. In action of tort for negligence, exclusion of plaintiff's testimony at former trial, wherein she stated that she "took a few osteopathic treatments," offered in impeachment of her present testimony that she took about two such treatments a week for about six months, held harmless, in absence of showing that this testimony did not relate to collateral matter.

13. Witness, who is not a party, may be impeached by giving in evidence statements made by such witness, at former trial or elsewhere, which are inconsistent with his testimony, foundation of such impeachment having first been laid by calling witness' attention to claimed statement and questioning him about it, but such statements are impeaching only, and not evidence to prove facts to be as stated.

14. Where witness is party, no foundation need be laid to introduce in evidence statements made at former trial or elsewhere inconsistent with present testimony, and such statements by party are evidence of the fact.

15. Wherever it can be perceived that positive witness is guilty of perjury unless his statement is true, while negative witness may be honestly mistaken, issue should be found in favor of former, if witnesses are of equal credibility.

16. In action of tort for negligence in collision of automobiles, where several witnesses testified to seeing skid mark, so there was no chance for honest mistake by them, and another witness who could have made an honest mistake as to existence of mark, by reason of his opinion concerning place cars collided, testified negatively, held that instruction as to relative weight to be given positive and negative testimony was proper under circumstances, and that exception thereto as inapplicable to testimony was without merit.

17. On question of what is negligence, it is material to consider consequences that prudent man might reasonably have anticipated, but, when negligence is once established, that consideration is wholly immaterial on question of how far it imposes liability.

18. So-called "emergency" doctrine in negligence cases is merely application of prudent-man rule, and is to effect that one who, confronted with sudden emergency through no fault of his own, and before he has had reasonable opportunity to recover from shock naturally resulting from such situation, does what may afterward seem to have been improper or foolish, is not negligent, if he does what prudent man would or might have done under similar circumstances.

19. In action of tort for negligence, by wife riding as husband's guest in automobile driven by him, against another motorist whose automobile collided with one in which plaintiff was riding, held that, as guest, she need not allege nor prove due care on husband's part, but only needed to prove that defendant's negligence was at least contributing proximate cause of her injuries, although as to latter, under circumstances of case, it was material to show that her husband acted with due care after collision.

ACTION OF TORT for negligence, by wife riding as husband's guest in automobile driven by him, against another motorist whose automobile collided with one in which plaintiff was riding. Plea, general issue. Trial by jury at the March Term, Washington County, 1934, Sturtevant, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Judgment reversed, and cause remanded.

Judgment reversed, and cause remanded.

Finn & Monti for the defendant.

J. Ward Carver for the plaintiff.

Present: POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SHERBURNE

This action grows out of an automobile accident on the cement highway in Hartland on September 1, 1930. At that time the surface of the highway consisted of a new 18-foot pavement with loose gravel shoulders. The plaintiff as a guest of her husband was traveling southerly in a car driven by him, when they overtook a car operated by the defendant. After following this car for a time, Mr. Bennett sounded his horn to go by and defendant's car, which had been traveling in the center of the road, pulled over to the right of the center, whereupon Mr. Bennett turned his...