Peter E. Lachance, Admr. v. Alex Myers

• Decision Date: 06 May 1925
• Citation: 129 A. 172,98 Vt. 498
• Parties: PETER E. LACHANCE, ADMR. v. ALEX MYERS
• Court: Vermont Supreme Court

129 A. 172

98 Vt. 498

PETER E. LACHANCE, ADMR. v. ALEX MYERS

Supreme Court of Vermont

May 6, 1925

October Term, 1924.

ACTION OF TORT. Plea, general issue. Trial by jury at the December Term, 1923, Caledonia County, Graham, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Chas F. Black and Porter, Witters & Longmore for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

The action is brought by the plaintiff as administrator of his deceased wife's estate for the benefit of himself and the wife's father as next of kin. The trial was by jury, resulting in a verdict and judgment for the plaintiff. The defendant moved for a directed verdict at the close of the evidence and excepted to the overruling of his motion. One ground of the motion was, in substance that the plaintiff was guilty of contributory negligence as a matter of law. The court submitted to the jury the question of contributory negligence, and also charged respecting the doctrine of the last clear chance, to which the defendant excepted. The only questions briefed are the subject-matter of these exceptions. It is not claimed here that the evidence did not make a case for the jury on the question of actionable negligence on the part of the defendant.

Plaintiff's wife was fatally injured in an automobile accident which occurred at the intersection of Pearl and Willard Streets in the city of Burlington. The car driven by the plaintiff was a seven passenger Buick, weighing about 3,280 pounds. The defendant was driving a Ford touring car which weighed about 1,580 pounds. Pearl Street going east approaches Willard Street at a grade of nearly five per cent., which increases to a "good sharp grade" east of their intersection. The grade of Willard Street is practically level at this point, descending slightly as it approaches Pearl Street from the south. The streets cross substantially at right angles and to any distance here material are both straight. The roadway of each is 35 feet wide between curbs.

The plaintiff is an experienced locomotive engineer and had driven an automobile many thousand miles before the accident. He was proceeding east along Pearl Street, on the right-hand side of the street, driving at the rate of fifteen to eighteen miles an hour up the grade approaching Willard Street. The road was clear ahead and defendant's car was the only other one in the immediate vicinity. The brakes on plaintiff's car were in good condition. He did not apply the brakes nor slacken his speed before the collision occurred, but he had the car under control up to the time of the collision. As the plaintiff approached the intersection of the streets, and when he was about twenty feet from the west side of Willard Street, he observed the defendant, who was approaching on Willard Street from the south, driving very near the center of the street. The defendant was then 100 to 110 feet from the south side of Pearl Street. The evidence was conflicting respecting the rate of speed at which the defendant was driving. His evidence tended to show that the speed of his car did not at any time exceed eight miles an hour, while the plaintiff's evidence tended to show that the defendant was driving about fifteen miles an hour when first seen, but that after the plaintiff started across Willard Street defendant increased his speed and was running about thirty miles an hour at the time of the collision. The plaintiff sounded his horn as he approached and again as he entered the intersections of the streets.

The plaintiff's automobile had passed the center of Willard Street when the collision occurred. The front end of the car had passed the east curb of the street and the rear end was six or seven feet east of the center thereof. When near the center of Willard Street the plaintiff discovered that the defendant was increasing his speed. Thereupon he turned to the left toward the center of Pearl Street to give the defendant more room, and his car was near the center of Pearl Street when the collision came. The defendant did not apply his brakes before the cars collided. Instead of proceeding straight ahead along the center of Willard Street, or swerving to the left as he might safely have done, the defendant turned to the right and gave his car such direction that his left-hand forward wheel and fender struck the right-hand rear wheel and fender of the plaintiff's car. The force of the impact was so great that the plaintiff's car was swept sidewise some distance and completely overturned. The plaintiff testified, as bearing upon the question of contributory negligence, that when he saw the defendant approaching Pearl Street he did not think there was any danger of a collision provided both cars proceeded as they were then proceeding; that the defendant was so far away he did not think it would be necessary to stop and allow him to pass; and that he did not think there was any danger or likelihood of a collision until it actually occurred. The defendant was an inexperienced driver. He had owned an automobile only about one month and estimated in his testimony that he had driven from 1,200 to 1,300 miles. It was the theory of the plaintiff that the defendant "lost his head" and in his excitement opened the foot throttle, with which the car was equipped. instead of applying the brake. The facts recited were not undisputed but they constitute the case viewed in the light most favorable to the plaintiff.

Defendant's motion for a directed verdict was properly overruled. On the evidence the question of contributory negligence was one of fact for the jury. The defendant relies specially upon the claim that the plaintiff was guilty of contributory negligence as a matter of law, because it was undisputed that he was driving at a rate of speed in excess of ten miles an hour, and further because he violated the law of the road requiring him to yield the right of way to the defendant who was approaching him from the right. While the statute (G. L. 4697) made the operation of an automobile at the place in question at a rate of speed exceeding ten miles an hour " prima facie evidence that it was being operated carelessly or negligently," it does not have the effect claimed for it. The question whether the plaintiff's conduct was negligent was still one of fact on all the evidence. Duprat v. Chesmore, 94 Vt. 218, 226, 110 A. 305. The evidence lacks the conclusive effect required to make it a question of law, as to which see Spaulding v. Mutual Life Ins. Co., 94 Vt. 42, 55, 109 A. 22; Howard Nat'l Bk. v. Wilson, 96 Vt. 438, 120 A. 889.

Nor does the fact that the plaintiff did not yield the right of way to the defendant bar his recovery as matter of law. The statute relied upon (G. L. 4705) provides, under penalty of a fine, that all intersecting highways shall be approached and entered slowly and with due care to avoid accident; and that except as otherwise provided, at intersecting highways all vehicles shall give the right of way to other vehicles approaching from the right, and shall have the right of way over those approaching from the left. It does not necessarily follow from the fact that the defendant was approaching the intersection of the streets from the plaintiff's...