Miller Chevrolet Co. v. Sears
| Decision Date | 05 October 1954 |
| Docket Number | No. 19,19 |
| Citation | 108 A.2d 529,118 Vt. 302 |
| Parties | MILLER CHEVROLET CO., Inc. v. James L. SEARS. |
| Court | Vermont Supreme Court |
John T. Conley, Middlebury, for plaintiff.
Edmunds, Austin & Wick, Burlington, Wayne C. Bosworth, Middlebury, for defendant.
Before SHERBURNE, C. J., and JEFFORDS CLEARY, ADAMS and CHASE, JJ.
This is an action of tort for damages to the plaintiff's automobile. Trial was had by jury. Verdict and judgment were for the plaintiff. The case is here on the defendant's bill of exceptions.
At the close of all the evidence the defendant moved for a directed verdict and after the verdict the defendant moved to set aside the verdict and for a judgment notwithstanding the verdict. These motions were denied and exceptions allowed. The grounds of these motions were that on all the evidence, viewed in the light most favorable to the plaintiff, it was guilty of contributory negligence, as a matter of law, which was a proximate cause of the damages complained of by it.
Viewed in the light most favorable to the plaintiff the jury, acting reasonably, could have found the facts as follows: the plaintiff's new Chevrolet automobile was being driven in a northerly direction from Middlebury village over U.S. Highway No. 7 at a speed of about fifty miles per hour. It was about 8:15 P. M. and it was dark. The driveway of the defendant is on the easterly side of Route No. 7 about a mile northerly from Middlebury village. The defendant's driveway runs from his house to Route No. 7 in a westerly direction down quite a steep incline. The defendant in backing down his driveway travelled a distance of 35 to 40 feet. When the plaintiff's driver was about 400 feet from the defendant's driveway he noticed defendant's car starting to back down the driveway. The plaintiff's driver was conscious all of the time he was approaching that the defendant's car was slowly backing down and he believed the defendant was going to stop at the entrance of the driveway into the highway. The plaintiff's driver maintained a speed of about 50 miles per hour until he was 125 feet or more south of defendant's driveway. At this point the observed the defendant's car continuing to back, without stopping, into the highway. At no time did he give any warning of his approach by sounding his horn. He slammed on his brakes and the rear end of the car started to sway. He was unable to bring the car to a complete stop and as he neared the defendant's driveway the defendant's car was across the highway and there was no room to pass by its front end. The plaintiff's driver turned his car into the defendant's driveway, ran off the edge of it and the car rolled off the bank onto its side.
Ordinarily the question of contributory negligence is for the jury, where the law has no settled rule of diligence, but when the material facts are undisputed, and are so conclusive that but one reasonable deduction can be drawn, the question is one of law for the court. Parro v. Meagher, 108 Vt. 182, 187, 188, 184 A. 885, and cases cited. Although the burden of proving freedom from contributory negligence was on the plaintiff, direct and affirmative evidence of due care on its part was not required. It was enough to carry the question to the jury to give evidence of such facts and circumstances as warranted an inference of due care on its part. Huestis v. Lapham's Estate, 113 Vt. 191, 195, 32 A.2d 115, and cases cited. In the circumstances its negligence must be determined by what its driver did or omitted to do, without regard to defendant's lack of care. While the plaintiff's driver had a right to assume the defendant would not drive in a negligent manner, he could not for that reason omit any care that the law demanded of him, as this rule applies only in favor of one whose conduct measures up to the standard of due care. No one driver must obey the rules; all must obey them. The circumstances and dangers in each case are always to be taken into account in determining what is due care or evidence of it. Parro v. Meagher, supra, and cases cited. See Kennedy v. Laramee, 115 Vt. 358, 362, 61 A.2d 547, and Bressett v. O'Hara, 116 Vt. 118, 122, 70 A.2d 238. The legal standard of care required of the...
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