Myrtle Mckirryher, B/N/F v. theron A. Yager
| Decision Date | 07 October 1941 |
| Citation | 24 A.2d 331,112 Vt. 336 |
| Parties | MYRTLE McKIRRYHER, b/n/f v. THERON A. YAGER |
| Court | Vermont Supreme Court |
May Term, 1941. Re-argued, Special Term at Rutland, November 1941.
Opinion on Re-argument filed February 3, 1942. Negligence Automobile-Pedestrian.---1. Judicial Notice of Natural Laws.---2. Glass in Road Not Conclusive Evidence of Site of Accident.---3. Plaintiff's Burden to Eliminate Contributory Negligence.---4. Conjecture No Proof.---5. Failure to See Automobile as Conjecture of High Speed.---6. Stepping in Front of Automobile Negatives Inference of Looking for Traffic.---7. Disposition to Avoid Injury Not Shown by Walking Into Path of Automobile.---8. Circumstances Determine Due Care.---9. Prudent Man Rule Varies with Circumstances.---10. Prudent Man Rule at Cross Walks.---11. Duty to Look at Cross Walk.---12. Contributory Negligence at Cross Walk.---13. Duty of Infant Pedestrian.---14. Contributory Negligence of Infant Pedestrian.---15. Obscured Vision Immaterial if Did Not Look.---16. Course of Broken Glass Affected by Contact.---17. Evidence Sufficient to Go to Jury.---18. Quantity and Character of Evidence Necessary for Verdict.---19. Verdict Directed when Contrary Verdict Would be Set Aside.---20. Scintilla of Evidence Not Sufficient.---21. Broken Glass as Evidence of Negligence.
1. The Court may take judicial notice of such natural laws as are matters of common knowledge.
2. Glass from a headlight shattered by a forceful blow in an autopedestrian accident may well be thrown in undeterminable directions in view of the car and the pedestrian diverting pieces of the same so that the location of glass is not conclusive of the situs of the accident.
3. The burden is upon the plaintiff to show freedom from contributory negligence.
4. Conjecture is no proof in him who is bound to make proof.
5. That a pedestrian crossing a street might have looked in the direction of an oncoming car and failed to see it and started to cross the highway upon the assumption that no car travelling within the speed limit would strike her before she reached a place of safety does not indicate freedom from contributory negligence if there is no evidence she did look.
6. That a plaintiff while crossing a street was struck by the headlight of an automobile 18 inches inside the outside of the car and that an instant before she was hit she was seen to attempt to step out of the way does not warrant the inference that she had looked for traffic appoaching.
7. Even with due consideration to the disposition of persons to take care of themselves and avoid injury, an inference thereof can not be found in the case of pedestrian stepping into the path of an oncoming car and being hit by the headlight 18 inches from the outside of the car.
8. The circumstances and dangers are always to be taken into account in determining what is due care or the evidence of it.
9. Particular requirements of the prudent man rule vary with the circumstances and the law must be applied to each controversy as may be warranted by the facts.
10. Even at a regular crossing at an intersection, a pedestrian is not freed from the necessity of complying with the prudent man rule and the fact that he starts to cross at such a place is merely a circumstance which may be considered in determining whether he has met the requirements of that rule.
11. The circumstances may be such that it is negligence for a pedestrian even at an intersection or while using a regular cross walk to fail to look or look effectively for approaching traffic.
12. In an action for injury sustained by a pedestrian hit by an automobile while she is crossing a city street relying wholly upon her perception of traffic, even at a regular cross walk she is guilty of contributory negligence in failing to look for traffic approaching on the farther side of the street at any time that could have availed for her protection.
13. An infant pedestrian must exercise the care and prudence reasonably to be expected from a person of her age, capacity and intelligence and experience in similar circumstances.
14. A sixteen year old pupil in junior high school living within 100 feet of a street which she had occasion to cross almost daily is held to be familiar with the circumstances and dangers in crossing that street and her failure to look for traffic approaching the place where she was crossing the street makes her guilty of contributory negligence as a matter of law.
15. That a plaintiff may have looked before starting to cross a street and that her view had she looked would have been obstructed is immaterial if there is no evidence that she did so look.
16. The course travelled by pieces of glass broken from a moving automobile by contact with a pedestrian must be considered to be affected by the contact.
17. Evidence must fairly and reasonably tend to establish the essential facts of the plaintiff's claim to entitle him to go to the jury.
18. Not only must there be some evidence tending to support the claim of a plaintiff but it must be of such quantity and character as to justify a jury, acting reasonably, to predicate a verdict thereon in favor of the party having the burden of proof to entitle the evidence to be submitted to a jury.
19. A motion for a directed verdict is to be granted whenever it would be the duty of the court, in the exercise of a wise judicial discretion, to set aside a contrary verdict if rendered.
20. Though there may be some evidence in the record tending to establish a claim, if the countervailing evidence so preponderates over it that it would be an abuse of the trial court's discretion to refuse to set aside a verdict founded thereon, a motion for a verdict for the other party may, without error, be granted.
21. Sufficient evidence to warrant submission to a jury of the question of a plaintiff's freedom from contributory negligence is not found in evidence of particles of glass broken from a headlight of a moving automobile hitting a pedestrian who was projected eighty-four feet or more, being found on both sides of the middle of the road as far as fifty and eighty-four feet west of where the pedestrian was found in the road, where there is no evidence to the extent to which or the direction in which glass may have been deflected by the interference of the pedestrian's body in its flight.
ACTION OF TORT for negligence. Trial by jury, September Term, 1940 Rutland County Court, Cushing, J., Presiding. Verdict and judgment for the plaintiff. See companion case McKirryher v. Yager, post, page 348, 24 A.2d 336. The opinion states the case. After original opinion was handed down, plaintiff's motion for reargument was granted and part of case reargued.
Judgment reversed and judgment for the defendant to recover his costs.
Clayton H. Kinney for defendant.
Stanley L. Burns and Lawrence & O'Brien for plaintiff.
Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The plaintiff, a minor, brings this action by her next friend to recover damages for personal injuries received when she was struck by defendant's automobile on April 22, 1940, while crossing Columbian Avenue at or near the corner of Evergreen Avenue within the limits of the City of Rutland. Trial by jury resulted in verdict and judgment for the plaintiff and the case comes here on the defendant's exceptions. At the close of the evidence the defendant moved for a directed verdict upon the ground, in brief, that plaintiff had failed to show freedom from contributory negligence, and to the denial of this motion he has briefed an exception.
Columbian Avenue is the main thoroughfare running west from the City of Rutland to West Rutland. It is a part of route Number 4. The surface of the roadway is concrete, 18 feet wide, with no mark or joint indicating the division between the west and the east bound traffic lanes. On the north side there is a gravel sidewalk, but on the south side there is no sidewalk, the grounds of a Gulf gasoline and service station being immediately opposite the place of accident, adjoined on the west by the grounds of another gas service station. Along the entire front of the grounds of both stations is a gravelled driveway or yard, extending back, in all places, more than twenty feet from the edge of the concrete road surface. Evergreen Avenue does not cross Columbian but comes into it obliquely from the northeast. It has an asphalt surface with a concrete sidewalk on the southeasterly side and a graded walk or path on the northwesterly side.
The plaintiff lived with her mother and sister in the first house from Columbian Avenue, distant some 40 or 50 feet therefrom on the northwesterly side of Evergreen. Shortly before the accident she left her home with her sister Doris and started toward Columbian Avenue. At about the same time a Mrs. Gould started in the same direction from another entrance to the same house. Doris crossed Evergreen Avenue and went down to Columbian which she did not intend to cross but the plaintiff and Mrs. Gould went down on the northwesterly side of Evergreen. Taking the evidence in the light most favorable to the plaintiff the jury might reasonably find that she walked down to the end of the graded walk or path and stopped a little west of a telephone pole and about five feet from the edge of the pavement on Columbian Avenue; that she looked to the east and waited until a west bound truck had passed in the northerly traffic lane; that she then started across Columbian Avenue, going diagonally to the west toward another pole on the other side of the street and at a point near the middle of the concrete she was struck by the left front headlight and left front of the radiator shell of defendant's east...
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