Peterson v. Post

• Decision Date: 02 January 1957
• Docket Number: No. 161,161
• Citation: 128 A.2d 668,119 Vt. 445
• Parties: Grace M. PETERSON v. Herbert E. POST, Jr.
• Court: Vermont Supreme Court

Page 668

128 A.2d 668

119 Vt. 445

Grace M. PETERSON v. Herbert E. POST, Jr.

No. 161.

Supreme Court of Vermont.

Jan. 2, 1957.

Jones, Ehrich & Clark, Bennington, for plaintiff.

Ryan, Smith & Carbine, Rutland, for defendant

Before JEFFORDS, C. J., CLEARY, ADAMS and HULBURD, JJ., and NAT L. DIVOLL, Jr., Superior Judge.

ADAMS, Justice.

The plaintiff, who was a pedestrian, brings this action to recover damages for personal injuries in which an automobile operated by the defendant was involved. Trial was by jury with a verdict and judgment for the plaintiff. The case is here on exceptions of the defendant to the denial of his motions for a verdict in his favor, to set aside the verdict and an exception to the charge of the court.

The plaintiff claims in her declaration that the defendant was negligent in that he operated his automobile at an unsafe, careless and unlawful speed under the circumstances; that he failed to stop within the distance illuminated by his headlights; failed to warn the plaintiff of his approach and operated his automobile on the left of the center of the road and ran into the plaintiff.

The evidence discloses that the accident happened on North Branch Street in the village of Bennington on December 17, 1954, sometime between 7:30 and 8 o'clock in the evening; that it was very dark and there were no lights or cross walks on the street; that it was very cold; that the street was very icy and covered with hard packed snow, sort of glassy and very slippery.

The defendant introduced as exhibit A a plan of the locality made to scale by a civil engineer. From his testimony, the plan and other testimony it appeared that the course of the street was generally north and south with a tarvia hard surface 18 feet wide and it was straight with a slight rise as one proceeded southerly. Olin's store was located on the westerly side of the street and the plaintiff who was 80 years old lived in a tenement over the store. The defendant lived on the westerly side of the street 400 to 500 feet northerly of the store. The plaintiff's mail box with two others was located on the easterly side of the street diagonally and southerly across from the store. These mail boxes were about opposite the southerly limits of a driveway to the Hutchinson house that was next southerly of the store. There was a driveway on the easterly side of the street next southerly of those mail boxes. Its northerly side was slightly over ten feet from the mail boxes. There was a stump on the westerly side of the street about opposite the southerly side of this driveway and a hydrant on the same side of the street about opposite the northerly side of this driveway. There was a wide driveway southerly from the stump leading to a junk yard and garage and a tree about equidistant from the northerly and southerly sides of the driveway and near the westerly side of the street. A neighbor of the plaintiff, a Mrs. Adams, lived on a side street that turned off the east side of North Branch Street several hundred feet south from where the plaintiff's mailbox was located. The plaintiff frequently visited Mrs. Adams in the evening to watch television.

The plaintiff testified that she left home about 7:30 and crossed the street to her mail box; looked before crossing the street and saw no cars coming. She took a letter from the mail box and then started up the street in a southerly direction on the left hand or easterly edge toward Mrs. Adams' where she was going to watch television. She didn't remember whether it was cold or warm or what the footing was like when she crossed the street. She was carrying a flashlight in her left hand and a cane in her right hand. She carried the cane because there was a dog that came out every time she went up the road. She was awfully afraid of dogs and carried the cane to ward off the dog. She didn't hear any horn and didn't remember what happened after she started southerly along the street. The next thing she remembered it was Sunday night and she was in the hospital. After starting up Branch Street on the left side she didn't remember of leaving that side. After taking her mail from the mail box she didn't remember anything until she woke up in the hospital. Immediately following that testimony in answer to two consecutive questions on redirect examination she repeated twice, 'I don't remember turning from the mail box.'

The defendant testified that he left his house at ten minutes of eight and drove out of his driveway in his car which was a two door 1954 Nash sedan. He kept his car in second gear and drove southerly on the right hand or westerly side of the street all the time at a speed of 18 to 20 miles per hour with his lights on high beam. He saw the plaintiff when he was 50 to 60 feet away from her and she appeared to be walking on the left hand or easterly side of the street between the mail boxes and the driveway next southerly of them. She then suddenly veered sharply to the right and cut diagonally into the travelled portion of the highway. He blew his horn, took his foot off the accelerator, put on his brakes and tried to turn to the right. The car didn't respond because of the icy condition of the road but the brakes slowed it down slightly. The plaintiff walked into the left front fender or mud guard where it covers the front wheel. It spun her around and threw her to the left. He judged he was about two feet from the center of the road on his right side at the time of the impact. The car continued along on the right side of the street until the right front end rested against a tree just off the street. It didn't hit the tree too hard. The right front fender was pushed back, the rim of the right headlight was shaken off and the front wheels knocked out of line. He thought the bumper was bent and so reported it but it was not.

He left the lights of the car on and he and his boy got out. The plaintiff was lying about in the center of the street and just southerly of the driveway that was on the easterly side of the street. He looked at her to see if any blood was flowing so as to apply first aid or emergency and seeing none, he stationed his boy there and went back to the store to telephone. There was no phone in the store so he had to go to the Hutchinson house. He then went back to the scene of the accident and before he left he saw the tire or skid marks of his car on the right hand of the street from a point southerly of the store to where the car was at the tree.

Mrs. Hutchinson, a neighbor of the plaintiff and her landlady, was a witness for the plaintiff. She testified that she was in the Olin store when the defendant came in to telephone. She and Mrs. Olin went to the scene. The plaintiff was lying parallel with the street and her head southerly and her body was three feet from the easterly side of the street. She saw the defendant's car at the tree. She saw the plaintiff removed in the ambulance and the state police officer arrive. Some months later, she went to the scene with the attorney for the plaintiff and located from memory the place where she saw the plaintiff lying. She measured from that place to the tree where she saw the defendant's car and the distance was 52 feet. Likewise the distance as she measured it from the plaintiff's mail box to where she was lying was 56 feet

Mrs. Olin testified that the plaintiff was lying on the left hand or easterly side of the street and that she would not care to pin herself down to any definite distance.

Dr. Humpheries, a witness for the plaintiff, testified that he came to the scene in response to an emergency telephone call and the ambulance was there when he arrived. The plaintiff was lying not quite in the center of the street, probably 3 feet from the center and 5 feet from the easterly edge of the travelled part. He used a flashlight...