Moisan v. Loftus
| Decision Date | 01 December 1949 |
| Docket Number | Docket 21402.,No. 37,37 |
| Citation | 178 F.2d 148 |
| Parties | MOISAN v. LOFTUS et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Philip J. Murphy, Worcester, Mass., Allin, Riggs and Shaughnessy, New York City, for appellant.
Frederick W. Wakefield, Jr., Burlington, Vt., for appellees.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
The plaintiff appeals from a judgment, entered upon a directed verdict in an action to recover for personal injuries resulting from the "gross" negligence of one of the defendants, Robert F. Loftus, the driver of a motor truck, in which the plaintiff was riding. (The judgment in favor of the other defendant, Frederick W. Loftus, is conceded to have been right.) On the evening of April 9, 1948, the defendant, Robert F. Loftus, invited the plaintiff to drive with him from Burlington, Vermount, to St. Albans in a truck, belonging to Robert's father, Frederick Loftus. The accident happened near midnight on a road, leading north from Burlington, at a point where the highway was close to Lake Champlain, whose waters for some unexplained reason had overflowed the road and frozen. The truck skidded on the frozen patch, left the road and injured the plaintiff. As a "guest" passenger he cannot recover unless he proved that the accident was "caused by the gross or wilful negligence of the operator."1 Taking the evidence most favorable to him on that issue, the facts, which a jury might have found, were as follows. After crossing a culvert or bridge the highway going north curved gently to the right, after which it ran unobstructed to the place of the accident. Loftus, the driver, who had been over the road once before, increased his speed to over fifty miles after he had passed the bridge, and put his headlights on "low beam, notwithstanding there were no other vehicles or vehicle lights in sight." The night was cold and windy and the temperature "very close to freezing," although it did not appear how cold it had been during the day. Loftus saw the patch of ice when he was only 200 or 300 feet away, and mistook it for water until the truck was upon it, when he applied his brakes hard, which made the truck skid for about 125 feet, strike a tree and upset. The only question we need decide is whether there was enough evidence of "gross" negligence to support a verdict. The judge thought not, and directed a verdict for the driver.
The Supreme Court of Vermont has several times accepted as the authoritative definition of "gross" negligence what was said in Shaw v. Moore,2 which the Supreme Court of the United States quoted in Conway v. O'Brien.3 In a recent case, which on the facts most nearly approaches the case at bar, the Vermont court again referred to this definition,4 and to a similar one in Dessereau v. Walker5 as one which "need not be here repeated." The difficulties are in applying the rule, as the Supreme Court observed in Conway v. O'Brien, supra;3 they arise from the necessity of applying a quantitative test to an incommensurable subject-matter; and the same difficulties inhere in the concept of "ordinary" negligence. It is indeed possible to state an equation for negligence in the form, C = P × D, in which the C is the care required to avoid risk, D, the possible injuries, and P, the probability that the injuries will occur, if the requisite care is not taken. But of these factors care is the only one ever susceptible of quantitative estimate, and often that is not. The injuries are always a variable within limits, which do not admit of even approximate ascertainment; and, although probability might theoretically be estimated, if any statistics were available, they never are; and, besides, probability varies with the severity of the injuries. It follows that all such attempts are illusory, and, if serviceable at all, are so only to center attention upon which one of the factors may be determinative in any given situation. It assists us here to center on the factor of probability, because the difference between "gross" and "ordinary" negligence consists in the higher risks which the putatively wrongful conduct has imposed upon the...
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Warren v. United States
...that libellant was not drunk. Whether he was "grossly negligent" poses a question which is always difficult to answer. See Moisan v. Loftus, 2 Cir., 1949, 178 F.2d 148. Before the Supreme Court's decision in the Aguilar case, supra, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107, it was not nece......
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Dobson v. Louisiana Power & Light Co., s. 89-C-2894
...it to help measure whether a driver's negligence had been gross or ordinary under the Vermont "guest-occupant" law. Moisan v. Loftus, 178 F.2d 148 (2d Cir.1949). The authors of Harper, James & Gray, The Law of Torts, cogently observe that "[t]he same risk, furthermore, may be avoidable at d......
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...at all, are so only to center attention upon which one of the factors may be determinative in any given situation." Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir.1949). ...
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...v. O'Brien, 111 F.2d 611 (2d Cir. 1940), rev'd on other grounds, 312 U.S. 492 (1941), and subsequently reexamined it in Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir. 1949). The Carroll Towing case is examined in the negligence context in OWEN, PRODUCTS LIABILITY LAW, supra note 13, [section]......
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