Nora L. Adams v. Charles W. Averill
| Citation | 88 A. 738,87 Vt. 230 |
| Parties | NORA L. ADAMS v. CHARLES W. AVERILL |
| Decision Date | 05 November 1913 |
| Court | Vermont Supreme Court |
October Term, 1913.
CASE for negligence. Plea, the general issue. Trial by jury at the March Term, 1913, Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. At the close of the evidence the defendant moved for a directed verdict. Motion overruled, to which the defendant excepted. The opinion states the case.
Judgment affirmed.
S Hollister Jackson for the defendant.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
At the close of the evidence, the defendant moved for a verdict on the grounds (stated in abridged form), (1) that there was no evidence tending to show the plaintiff free from contributory negligence; and (2) that there was no evidence tending to show negligence on the part of the defendant. On exception to the overruling of this motion the case is here.
It appears from undisputed evidence that at the time of the accident in question the defendant was operating his automobile in North Main Street in the City of Barre. He came into that street quite a distance north of the place of the accident, and was proceeding southward in the right hand side of the street, and at the right of the track of the electric railroad, there extending along practically in the center of the street. It was some minutes past noon. The plaintiff and her companion, one Mrs. Baldwin, had been waiting in a store just a little north of a stopping place for the electric cars, intending to take the next car northerly towards their homes. The plaintiff, hearing or seeing an electric car coming from the south and going northerly, spoke to her companion and hurried out to stop it, going along the sidewalk to a point opposite where the cars stop. At that place the distance from the curbstone at the edge of the street to the line of the running board of the open electric cars on the track, was eighteen feet. The defendant, in his automobile, was coming up the street from the north, the machine being not more than five and one-half feet wide. From the place of the accident northerly, the street is straight for a long distance, the day was clear, the plaintiff's eyesight good, and there was nothing to obstruct her view in that direction when on the sidewalk just before stepping into the street.
The evidence immediately touching the happening of the accident will be stated according to its fair and reasonable tendency most strongly in favor of the plaintiff. She testified in effect that just before stepping off the curbstone into the street to go over to the electric car track to stop the car she looked southerly, but neither saw nor heard an automobile coming. From this it is argued in defence, that she could not have been looking as the exercise of due care required, for if she had been, she must have seen the defendant's automobile coming in plain sight only some fifteen feet away, and she will be charged with seeing what, in the exercise of such care, she ought to have seen. This position of the defendant may be sound in law (see Labelle v. Central Vermont Ry. Co., 87 Vt. 87, 88 A. 517), and yet not decisive of the case; for the plaintiff further testified in substance that she had in fact crossed from the sidewalk to the electric track, and was about to get aboard the car when injured; and the testimony of Mrs. Baldwin was, that she and the plaintiff, being shopping together, were in the store just before the accident, waiting for an electric car on which to ride home;...
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