McLaughlin v. Getman

• Decision Date: 02 October 1951
• Docket Number: No. 1024,1024
• Citation: 117 Vt. 25,83 A.2d 513
• Court: Vermont Supreme Court
• Parties: McLAUGHLIN v. GETMAN.

Page 513

83 A.2d 513

117 Vt. 25

McLAUGHLIN v. GETMAN.

No. 1024.

Supreme Court of Vermont.

Oct. 2, 1951.

Angelo J. Spero, Rutland, for plaintiff.

Black & Wilson, Burlington (Stephen B. Richardson, Burlington, on the brief), for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

This is an action of tort to recover damages for personal injuries by reason of being struck by an automobile operated by the defendant. Trial was by jury. At the close of the plaintiff's evidence the defendant moved for a directed verdict on the ground that there was no evidence showing negligence on the part of the defendant and that the evidence showed that the plaintiff was guilty of contributory negligence. After some discussion pertaining to the motion the court adopted the procedure of suspending its ruling, saying that it would submit the case to the jury, and if it brought in a verdict for the plaintiff it proposed to set it aside.

The case was thereupon submitted to the jury and it returned a verdict for the plaintiff. The defendant then made a motion to set it aside and enter judgment for the defendant on the grounds stated in his motion for a directed verdict. The motion was granted and judgment entered for the defendant. The case is here on the plaintiff's exceptions.

The procedure adopted by the trial court was novel and so far as has come to our attention without precedent in this jurisdiction. That does not necessarily condemn it. We know of nothing that prohibits it if the trial court sees fit to adopt it, certainly, where counsel acquiesce as they did here.

The grounds of the motion being that there was no evidence showing negligence on the part of the defendant and that it showed the plaintiff guilty of contributory negligence made the ruling thereon one of law and subject to review here. French v. Wheldon, 91 Vt. 64, 68-69, 99 A. 232.

The evidence must be taken in the light most favorable for the plaintiff as the motion in this respect is the same in nature and substance as a motion for a directed verdict. In fact here under the procedure adopted by the court it amounted to the same thing. If the effect of the evidence was as the defendant claimed it to be, the entry of judgment in his favor was without error. Farrell v. Greene, 110 Vt. 87, 89-90, 2 A.2d 194, and cases cited, Collins v. Fogg, 110 Vt. 465, 470, 8 A.2d 684.

We first consider the question of the plaintiff's contributory negligence. The testimony upon this issue came largely from the plaintiff himself. He was an adult 67 years old. At about seven o'clock in the evening of October 19th he was on the east side of South Main street in the city of Rutland, the course of which is north and south and straight for a considerable distance at the place in question. Its hard surfaced travelled portion was about 27 feet wide and there was a hard surface shoulder on its easterly side about nine feet wide. The plaintiff wanted to get on to the west side of the street and started across. After he was on the easterly shoulder he looked in both directions and saw the lights of the defendant's car coming from the south. It was about 150 feet away at that time and the plaintiff stopped at the edge of the travelled portion of the street. He continued to watch it and waited for it to pass. When it was about 14 feet from him he took one step or two into the street and was struck by the car. It 'shimmied' and seemed to come right into him as he turned to avoid it. He was about one step into the street when he was hit.

The burden was on the plaintiff to show his freedom from contributory negligence. Steele v. Fuller, 104 Vt. 303, 308, 158 A. 666; Palmer v. Marceille, 106 Vt. 500, 507, 175 A. 31; Hill v. Stringer, 116 Vt. 296, 299, 75 A.2d 657. He had the right to assume that the defendant would not drive in a negligent manner but he could not for that reason omit any care which the law required of him, as the rule applies only in favor...