Mattison v. Smalley

• Decision Date: 01 November 1960
• Docket Number: No. 179,179
• Citation: 165 A.2d 343,122 Vt. 113
• Parties: Thelma K. MATTISON v. Sylvia SMALLEY.
• Court: Vermont Supreme Court

Page 343

165 A.2d 343

122 Vt. 113

Thelma K. MATTISON v. Sylvia SMALLEY.

No. 179.

Supreme Court of Vermont.

Nov. 1, 1960.

Edwin W. Lawrence, Donald M. French, Rutland, for plaintiff.

Ryan, Smith & Carbine, Rutland, for defendant.

Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY, and SMITH, JJ.

SHANGRAW, Justice.

This is an action to recover for personal injuries sustained by the plaintiff as a result of having the automobile she was operating struck from the rear by a car operated by the defendant. The accident occurred June 9, 1956 on Route 7 between Manchester and Manchester Center, Vermont.

Trial was by jury. A verdict was returned for the plaintiff with judgment entered thereon. The case is here on the defendant's following specifications of error; the court's denial of the defendant's motion for a directed verdict made at the close of the plaintiff's case and renewed at the close of all the evidence; the overruling of the defendant's objection to a portion of the plaintiff's argument to the jury; the denial of defendant's request to charge; and to the court's failure to set aside the verdict.

The accident happened at approximately 8:15 A.M. at a point in front of the Little Shop. The plaintiff was driving a 1950 Chevrolet, owned by her husband Leo J. Mattison, and travelling north. The Little Shop was on her left-hand side of the road. The highway was concrete and the surface dry. The weather was clear and the visibility good. This was a two lane road with a center line in the highway. Looking northerly the highway at this point was slightly down grade. The plaintiff stopped directly across from the Little Shop intending to make a left turn to go into the shop after a car approaching from the opposite direction had passed.

At the place of the accident there was a curbing and sidewalk on the right-hand side of the highway. The plaintiff flashed her rear or stopping light and signalled to make a left-hand turn to go into the Little Shop. The defendant saw the rear light and signal when her car was about three lengths, or 50 feet, behind the Mattison car. Both cars had been going about 15 miles per hour before the plaintiff gave these signals.

The defendant had trailed plaintiff's car for some distance. On seeing the signals given by the plaintiff the defendant testified that she applied her foot brake which failed to function, going all the way to the floor, and she then pumped the foot brake without results. She did not however apply or use the hand or emergency brake. It was half a minute after the defendant found that her foot brake did not work until the impact of the two cars.

At the time of this accident the defendant was driving a 1950 Studebaker owned by her mother. The defendant's home was located about a block west of Route 7 on the West Road. The defendant lived on the east side of the West Road. In the morning of June 9, 1956 the Smalley car was in the driveway and the defendant backed it out of the driveway, stopped, and headed north along the West Road. She then slowed down and made a right-hand turn into a dirt road. She then proceeded along the dirt road until it met Route 7, and then stopped before entering Route 7. She then proceeded north on Route 7. On each occasion of stopping and slowing down the defendant testified that the brakes worked perfectly. The Smalley car had passed State Inspection in the spring prior to June 1956, and had been driven to Saratoga Springs, N. Y., by the defendant, as well as by her mother, the week before the accident and that at that time there was nothing wrong with the car.

The defendant first observed the plaintiff's car when approximately opposite the P. T. Motors located southerly of the Little Shop a distance of about one fourth of a mile. Plaintiff's car was then three or four lengths ahead of the defendant's automobile. As a result of the collision plaintiff's car was pushed northerly about ten feet. The defendant testified that she did not go to the left of the Mattison car because of an automobile coming south, nor to the right on account of the curbing and tree located on the right-hand side of the road. When the two cars finally came to rest the front of the Smalley car was one or two feet from the rear of the Mattison automobile. No question as to the contributory negligence of the plaintiff is presented.

Exceptions taken by the defendant on her motion for a directed verdict made at the close of the plaintiff's case were waived by thereafter continuing with the trial. Kinsley v. Willis, 120 Vt. 103, 107, 132 A.2d 163; Hobbs & Son v. Grand Trunk Railway Co., 93 Vt. 392, 397, 108 A. 199. In passing upon the motion for a directed verdict made at the close of all the evidence, and the motion to set aside the verdict it is sufficient to say that the evidence must be taken in the light most favorable to the prevailing party and the effect of modifying evidence is to be excluded. Jones v. Jones Est., 121 Vt. 111, 117, 149 A.2d 738; O'Brien v. Dewey, 120 Vt. 340, 346-347, 143 A.2d 130; Shanks v. Lavallee, 118 Vt. 433, 434, 111 A.2d 808.

In denying these motions of the defendant, the court ruled as a matter of law that the evidence, viewed in the light most favorable to the plaintiff, tended to support a plaintiff's verdict. Dashnow v. Myers, 121 Vt. 273, 278, 155 A.2d 859; Dessereau v. Walker, 105 Vt. 99, 101, 163 A. 632.

In support of these two motions the defendant claims that she was caught in a trap, and that the unexpected failure of the brakes was the sole proximate cause of the accident. She urges that there was no negligence on her part and that the accident was unavoidable.

To be an unavoidable accident as to the defendant, it must have occurred without any proximate cause on her part. The test of liability is not whether the injury was accidental, but whether the defendant was at fault. Larrow v. Martell and Cobb, 92 Vt. 435, 437, 104 A. 826. The court gave the usual charge that the burden of proof was with the plaintiff to show negligence on the part of the defendant as the proximate cause of the accident, and failing this, the verdict must be for the defendant. This eliminated the possibility of a recovery if the jury should find an unavoidable accident. Larrow v. Martell and Cobb, supra. Moreover the court adequately charged on the rule of sudden emergency.

In moving to set aside the verdict by claiming unavoidable accident as a defense, the defendant urges that there was no evidence to support the verdict; that there was no substantial evidence that the defendant had any knowledge of any defect in the braking system, nor that the accident resulted from any negligent act or omission on the part of the defendant which was a proximate cause of the accident. This defense is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the accident. Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1. The defendant admitted that she had an emergency brake, but that she did not use it. In the light of the circumstances the jury could have taken the view that the defendant failed to use the means at hand to avert the accident. Further, it was within the province of the jury to consider the distances the cars travelled after the impact as bearing upon speed and lack of control on the part of the defendant, as well as the weight to be given her testimony. Page v. McGovern, 110 Vt. 166, 171, 172, 3 A.2d 543. No error appears in the denial of these motions.

During argument to the jury by plaintiff's counsel the following objection was made...