Mabelle A. Howley v. Max Kantor

• Decision Date: 04 January 1933
• Citation: 163 A. 628,105 Vt. 128
• Parties: MABELLE A. HOWLEY v. MAX KANTOR
• Court: Vermont Supreme Court

163 A. 628

105 Vt. 128

MABELLE A. HOWLEY v. MAX KANTOR

Supreme Court of Vermont

January 4, 1933

Special Term at Rutland, November, 1932.

Automobiles---Contributory Negligence---Application of "Prudent Man Rule"---Instruction to Jury---Statutes, Construction of---Pedestrian as "Approaching Traffic" within Meaning G. L. 4705, subd. IV---Evidence---Necessity of Expert Medical Testimony To Lay Foundation for Future Damages for Claimed Cancerous Growth---Damages.

1. In

ACTION OF TORT for personal injuries received by pedestrian while crossing street at place other than regular crossing question of plaintiff's contributory negligence in failing to see approaching automobile on left side of street held for jury.

2. Under practical application of "prudent man rule," precautions to be taken increase with hazards.

3. Instruction leaving to jury question whether prudent person crossing street at place other than regular crossing would exercise same or higher degree of care than when crossing at regular place provided for foot traffic, held reversible error.

4. Statute must have reasonable construction, and one that will carry out rather than defeat evident purpose and intention of Legislature.

5. In interpreting particular word of statute, regard must be had to nature of subject-matter and intention of Legislature as evidenced by whole provision.

6. Pedestrian crossing street at place other than regular crossing held, "approaching traffic" within meaning of G. L. 4705, subd. IV, providing that motorist overtaking another vehicle going in same direction shall pass to its left, but shall not pass to left of center of highway unless way ahead is clear of approaching traffic.

7. Competent expert medical testimony held essential on question whether growth was cancerous, to lay foundation for claim of plaintiff in action of tort for personal injuries for future damages by reason of it being of cancerous nature.

8. Consequences which are contingent, speculative, or merely possible are not entitled to consideration in ascertaining damages.

9. Testimony of medical expert that about eighty per cent of abnormal growths on breasts were cancerous, held insufficient to justify conclusion that particular growth was cancerous, or to furnish basis for assessment of damages on that ground.

ACTION OF TORT to recover for personal injuries received through alleged negligence of defendant. Plea, general issue. Trial by jury at the March Term, 1932, Rutland County, Davis, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed, and remanded.

Judgment reversed, and cause remanded.

Clayton H. Kinney for the defendant.

Novak & Bloomer for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The plaintiff was struck by the defendant's automobile and injured while she was crossing Merchants Row in the city of Rutland at about nine o'clock in the evening of March 4, 1930. It is not questioned that the evidence reasonably justified a finding by the jury that negligence of the defendant proximately caused the accident, but the question of plaintiff's contributory negligence, as a matter of law, is raised by defendant's exception to the denial of his motion for a directed verdict.

Merchants Row is a busy street in the heart of the business section. This streets runs north and south, and it is 52 feet wide between curbs. The plaintiff started to cross from the westerly to the easterly curb "between crossings." About 170 feet northerly of this point, West Street intersects this street, and a regular crossing is there provided for pedestrians. Traffic at the intersection is directed by "stop" and "go" signal lights.

The plaintiff looked in both directions before she left the westerly curb. There was no traffic from the south, and there was then no traffic moving between her and the intersection. She saw a bus facing east on West Street. When she reached the center of the street, the bus was proceeding southerly on Merchants Row, and was about 70 feet distant from her. The bus was 25 feet long and 8 feet wide, and, as it was proceeding, its east side was near the center line of the street. At the center of the street, and after the plaintiff had crossed the lane of travel occupied by the bus, she looked south and saw that no traffic was approaching from that direction. She then directed her attention to the lights of the bus, and started to cross the easterly half of the street.

The defendant followed the bus a short distance south of the West Street intersection, and then turned his car to the left from behind the bus and was driving in the easterly lane of traffic, passing the bus, when he struck the plaintiff, who was 17 feet from the easterly curb.

The defendant does not argue that the plaintiff did not have the legal right to cross the street at a place other than a regular crossing, but he does contend that when the plaintiff chose to cross at such a place, the prudent man rule required that she exercise a greater degree of vigilance for her own safety. When tested by this strict rule, we think the facts clearly made it a jury question whether the plaintiff's conduct met its requirements. It may be that if the plaintiff had looked to the rear of the bus, and not at its lights, she might have seen the defendant's car turn into her lane of travel in time to have avoided the accident, but even a person situated as the plaintiff was can hardly be expected to look in all directions at the same instant. After she had reached and passed the center of the street, her attention, naturally, would be chiefly directed to the south--the direction from which traffic would most likely be approaching her. Aiken v. Metcalf, 90 Vt. 196, 200, 97 A. 669; Parker, Admr. v. Smith, 100 Vt. 130, 134, 135 A. 495. It cannot be said, as a matter of law, that the plaintiff ought reasonably to have anticipated that the defendant would suddenly and without ample warning drive his car from behind the moving bus, into the easterly path of traffic, and run her down. The motion was properly denied.

The defendant requested the court to charge that "a person in attempting to cross a public street or highway at a point other than one provided for pedestrians is required to use greater care than when such person crosses at a point provided for pedestrians." The court did not comply with this request, but told the jury that it was for them to say whether a prudent person would in those circumstances exercise the same or a higher degree of care than when crossing at a regular place provided for foot traffic. In other words, the rule of conduct applicable to the plaintiff's situation was left to the jury to fix with only the prudent man doctrine to guide them. The question of the accuracy of these instructions is saved by appropriate exceptions.

The use of the term "greater degree of care" as applied to the plaintiff's situation may be misleading, and technically inaccurate. There is but one standard of care to be applied to a person crossing at either place--the care and prudence of a prudent person under the circumstances. However, the practical application of the rule is quite different. The precautions to be taken increase with the hazards. Aiken v. Metcalf, supra; see Shaw, Admr. v. Moore, 104 Vt. 529, 162 A. 373, 375. At regular crossings where pedestrians usually cross, the driver of a motor vehicle is required to be more vigilant in keeping a lookout for foot travelers than at points between crossings, and at points where the vigilance of the driver is somewhat relaxed, the vigilance and watchfulness required of the foot traveler is...