Parro v. Meagher

• Decision Date: 05 May 1936
• Citation: 184 A. 885,108 Vt. 182
• Parties: ERNEST PARRO, b/n/f v. M.A. MEAGHER
• Court: Vermont Supreme Court

184 A. 885

108 Vt. 182

ERNEST PARRO, b/n/f v. M.A. MEAGHER

Supreme Court of Vermont

May 5, 1936

February Term, 1936.

Automobiles---Accident at Intersection---P. L. 5110, Subds. II and IV, Relating to Right of Way and Through Way Construed Together---Evidence Held Sufficient to Establish Negligence of Defendant Operator---Contributory Negli- gence When Question of Law---Burden of Showing Freedom from Contributory Negligence---Defendant's Conduct Not Considered in Determining Contributory Negligence---Contributory Negligence Not Affected by Plaintiff's Right to Assume Due Care by Defendant---Due Care Determined by Particular Circumstances---Speed as Constituting Negligence as Matter of Law---Evidence, How Viewed on Defendant's Motion for Verdict---Plaintiff Held Guilty of Contributory Negligence as Matter of Law.

1. P L. 5110, subd. II, providing that all vehicles shall give the right of way to other vehicles approaching at intersecting highways from the right, etc., and P. L. 5110, subd. IV providing that every vehicle immediately before entering a through way, etc., shall be brought to a full stop, etc., are to be construed together, and so construed mean that the operator of a motor vehicle approaching a through way from the right still has the benefit of the right of way rule provided he stops as required by subd. IV and thereafter exercises due care in entering the through way.

2. In action to recover for personal injuries and property damage arising out of collision between plaintiff's motor cycle and defendant's automobile, where evidence tended to show that defendant entered a through way without stopping and at a speed of 20 to 25 miles an hour, and failed to pass to the right of and beyond the center of the intersection before turning to the left, held that defendant's negligence was clearly established.

3. Ordinarily the question of contributory negligence is for the jury, where the law has settled no rule of diligence, but where the material facts are undisputed, and are so conclusive that but one reasonable deduction can be drawn therefrom, the question is one of law for the court.

4. In action for negligence, plaintiff has burden of showing freedom from contributory negligence and of producing evidence thereof sufficient to take case to the jury.

5. In action to recover for personal injuries and property damage arising out of collision between plaintiff's motor cycle and defendant's automobile, where accident occurred at intersection of through way on which plaintiff was traveling and highway on which defendant was approaching on plaintiff's right, held that plaintiff's contributory negligence must be determined by what he did or omitted to do, without regard to defendant's lack of care.

6. In such circumstances, while plaintiff has right to assume that defendant would not drive in a negligent manner and would come to a full stop before entering the through way, he could not for that reason omit any care that the law demanded of him, as the rule applies only in favor of one whose conduct measures up to the standard of due care.

7. The circumstances and dangers in each particular case are always to be taken into account in determining what is due care or evidence of it.

8. While the question whether the operation of a car at a certain speed constitutes negligence is ordinarily for the jury, it is not necessarily so, but the question of what is or what is not a speed that a court will declare negligent as a matter of law varies, and must vary, very largely with the circumstances of each particular case.

9. On defendant's motion for directed verdict in negligence action, on ground that plaintiff was guilty of contributory negligence, the evidence must be viewed in light most favorable to the plaintiff.

10. In action to recover for personal injuries and property damage arising out of collision between plaintiff's motor cycle and defendant's automobile at a highway intersection, where plaintiff was familiar with the intersection, had driven his machine 8,000 or 9,000 miles, was traveling 10 to 15 miles an hour 9 to 10 feet from the intersection, at which speed it would require 15 to 20 feet to stop, and where in the 90 or 91 feet in which he reduced his speed, his brakes were applied so hard that the wheels of his machine left a mark on the cement the entire distance, held that plaintiff failed to have his machine under proper control as he approached the intersection, as required by P. L. 5110, subd. III, and was guilty of contributory negligence as a matter of law.

ACTION OF TORT to recover for personal injuries and property damage arising out of collision between plaintiff's motor cycle and defendant's automobile. Plea, the general issue. Trial by jury at the March Term, 1935, Washington County, Davis, J., presiding. Defendant's motions for directed verdict were overruled. Verdict for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed and judgment for defendant to recover his costs.

Fred E. Gleason for the defendant.

George R. McKee and J. Ward Carver for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

SLACK

The action is tort to recover for personal injuries and damage to plaintiff's motor cycle caused by a collision between it and defendant's automobile. The plaintiff had a verdict and judgment below and the case is here on defendant's exceptions.

One exception was to the refusal of the court to direct a verdict for defendant at the close of the evidence on the ground that it failed to show negligence on his part and did show contributory negligence on the part of the plaintiff. Our disposition of this exception makes consideration of other exceptions saved unnecessary.

The collision occurred about 6.30 a.m., July 16, 1934, about three miles westerly of Williston village on the main highway leading from that village to Burlington at what is known as Taft's Corners, where a highway leading from Essex to Hinesburg crosses the Williston-Burlington highway. The Essex-Hinesburg highway runs nearly due north and south, and has a "stop" sign on the westerly side 45 feet from the intersection, which was erected in compliance with the requirements of P. L. 4724-4726. The Williston-Burlington highway runs in a northwesterly and southeasterly course, has a cement surface, is a "through way," and there is a "cross road" sign and a "slow" sign on the northerly side of it about 150 feet and 90 to 95 feet, respectively, east of the intersection. The plaintiff was traveling from Williston toward the intersection and defendant was traveling toward the same point from Essex. The plaintiff was driving a Harley-Davison, 1929 model, motorcycle that he had driven eight or nine thousand miles, which was in A-No. 1 condition, the brakes having been adjusted and "the machine all checked over" only two days before. It was a clear morning and the surface of the highway was dry. The plaintiff had driven over the highway he was on twice a week for nearly two years.

He testified that when about 100 feet east of the intersection, and traveling 35 to 40 miles an hour, he saw defendant approaching the intersection from the north on the Essex-Hinesburg road around 35 to 40 feet from the intersection, traveling about 25 miles an hour; that when he saw defendant he started to slow up, and had reduced his speed to 10 to 15 miles an hour when 9 to 10 feet from the intersection; that defendant was then 8 or 9 feet from the cement; that when he saw defendant was not going to stop, as he expected he would, he slammed on his brakes but did not have time to stop, and defendant made a left-hand turn and crashed into him; that with his motor cycle and the surface of the highway in the condition they then were he could stop when going 35 to 40 miles an hour in around 100 feet or so, and when going 10 to 15 miles an hour could stop in 15 to 20 feet; that "it takes quite a little space to stop them, you can't hold your wheel continuous."

One Boyce, a witness for plaintiff, testified that he was following plaintiff 800 to 900 feet behind him driving from 35...