Ploesser v. Burlington Rapid Transit Co.

• Decision Date: 04 March 1959
• Docket Number: No. 327,327
• Citation: 149 A.2d 728,121 Vt. 133
• Parties: David PLOESSER v. BURLINGTON RAPID TRANSIT CO., Century Indemnity Co., Inc.
• Court: Vermont Supreme Court

Page 728

149 A.2d 728

121 Vt. 133

David PLOESSER v. BURLINGTON RAPID TRANSIT CO., Century Indemnity Co., Inc.

No. 327.

Supreme Court of Vermont.

March 4, 1959.

Joseph C. McNeil, Burlington, for plaintiff.

Edmunds, Austin & Wick, Burlington, for defendants.

Before CLEARY, C. J., and ADAMS, HULBURD, HOLDEN and SHANGRAW, JJ.

HOLDEN, Justice.

On October 22, 1955, the plaintiff sustained injuries to his back while riding as a regular passenger on a motor bus operated by the Burlington Rapid Transit Company in the city of Burlington. The bus was proceeding north on Elmwood Avenue in rather heavy traffic. The plaintiff was injured when the bus came to a sudden stop. The plaintiff was seated at about the middle of the bus, next to a window. The abrupt stop ejected the plaintiff forward into the back of the seat ahead. He then rebounded into the adjacent seat on the aisle. The force of the jolt displaced other passengers and two passengers were thrown to the floor. The plaintiff was removed from the bus and taken to the Mary Fletcher Hospital by police car.

The evidence is settled, beyond dispute, that the bus was brought to an abrupt halt to avoid colliding with a car immediately in front of the bus. Both vehicles were traveling in the same direction on Elmwood Avenue. There was conflict in the proof concerning the speed of the motor carrier at the time the brakes were applied and the location on Elmwood Avenue where the stop was made. The plaintiff's evidence was that the transit vehicle was traveling between thirty-five and forth miles an hour, and had not reached the intersection of North Street with Elmwood Avenue. The defendants' evidence was that the bus was moving at a speed of no more than five miles an hour while moving away from the traffic light at the North Street intersection.

Prior to the accident on March 9, 1955, the plaintiff had injured his back while at work in his regular employment. In July, the plaintiff was hospitalized as a result of the original injury and underwent a surgical operation. An intervertebral disc was removed and a spinal fusion performed. Following the surgery, the plaintiff was confined to bed rest in the hospital for a period of three weeks. Thereafter he was permitted to be up but was required to wear a surgical brace and was cautioned against any strenuous activity during the next ensuing six months. Up to the time of the accident, the plaintiff's convalescence had been normal and satisfactory. Some two months before the accident, the plaintiff was found to be essentially free of symptoms. At that time the plaintiff inquired of his surgeon about the advisability of his travel on a train and was advised that this activity would not be particularly harmful. The doctor further informed the plaintiff that sedentary work might be possible by October 1, 1955 but any more strenuous activity should be avoided until January.

The plaintiff brought this action in negligence against the transit company and its insurance carrier. The jury returned a verdict for the plaintiff. Both defendants join in a single appeal and assign error to the refusal of the trial court to set aside the verdict, and to the instructions of the court in submitting the case.

Before the jury was impaneled, the defendants called to the attention of the court the fact that the Century Indemnity Company had been named as a defendant in the action. The defendants took the position that the statute permitting the joining of the insurer is merely to give the plaintiff a direct right of action against the insurer; that the Century Indemnity Company is not a party ex delicto and the fact that they are a party ought not to be called to the jury's attention. The court denied the defendants' request and granted an exception to its ruling. The Court further saved an exception on this point whenever it might be reached during the course of the trial, without necessity of further objection or formal motion for a mistrial.

The defendants have briefed the question under their exception to the denial of their motion to set the verdict aside. This ground was not specified in that motion. However, in view of the broad exception granted the defendants on the issue, in the conference before trial, we will consider the question as properly raised.

In his opening statement counsel for the plaintiff remarked that the plaintiff 'has brought this action against the bus company and the insurance company * * *'. Later in the trial, the defendants at the bench offered 'to show that the Century Indemnity Company is only obligated to pay any verdict in excess of $10,000 and that any verdict over that amount will have to be paid by the Burlington Rapid Transit Company.' (sic) The offer was excluded.

The court commented upon the matter in the course of the charge: 'In a case of this kind involving a public carrier, the statutes of this State provide that the carrier insurance company may be joined as a co-defendant. The defendant Century Indemnity Company, however, is not liable in this case unless you first find that the defendant Brulington Rapid Transit Company is liable. That is, your verdict, if for the plaintiff, must be against both defendant. You should not let the fact the insurer is a party defendant influence your decision in this case, as it is your duty to fairly and justly and impartially decide the case upon all the evidence in the case.'

V.S. 47, § 10173 as amended, No. 191 Acts of 1953, compels adequate financial responsibility as a condition precedent to the registration and operation of a motor bus on a public highway in this state to indemnify the carrier against any legal liability for personal injury or property damage which may result from the operation of a motor bus. V.S. 47, § 10174 provides that the insurer or surety may be made a co-defendant with the owner of the motor bus in an action for injury, death or property damage.

In support of their claim of reversible error, the defendants rely on the general rule applicable to causes where private contracts of insurance are involved to indemnify a private vehicle, as stated in Ryan v. Barrett, 105 Vt. 21, 23, 162 A. 793. In these cases it is recognized that insurance or the want of it is a private matter between the insured and his indemnifier. The injured party has no right to have his claim secured by a contract of indemnity and has no direct action against the insurer. Prejudicial error has resulted when the fact of insurance was worngfully interjected into the case. Glass v. Bosworth, 113 Vt. 303, 308, 34 A.2d 113; Ryan v. Barrett, supra, 105 Vt. at page 23, 162 A. at page 794, and cases cited.

Public liability insurance, openly required of all motor busses, by statute, stands differently. The public has an interest in the contract and the injured person has been given a direct right of action against the insurer. The existence of insurance is not prejudicial in the legal sense to the insured or his surety. It is the plain requirement of the law. And we find no prejudice in the existence of a legal relationship which the public law contemplates and demands.

The trial judge merely explained this relationship and the presence of the insurer as a party defendant. In so doing, the court correctly applied the statute to the litigation at hand, consistent with the holding in Stark v. Crowell, 117 Vt. 413, 417, 94 A.2d 585. In so doing, the liability of the insurance carrier was properly relegated as subordinate to, and dependent upon the principal issue of the liability of the transit company.

The defendants further claim there was error in the reference to the relationship between the parties defendant for the reason that no evidence was offered to show the Century Indemnity Company did, in fact, insure the Burlington Rapid Transit Company. Whether such evidence was essential we do not decide. It is sufficient to point out that the entire purport of the defendants' request to exclude any reference to the insurance carrier and their subsequent offer to show the nature of the insurance contract existing between the defendants, constitute judicial admission of the fact which they now claim was erroneously omitted from the plaintiff's proof. See Citizens' Savings Bank & Trust Co. v. Fitchburg Mut. Fire Insurance Co., 87 Vt. 23, 32, 86 A. 1056. The exception to the action of the trial court in refusing to set the verdict aside is without merit.

The defendants' remaining exceptions are directed to the trial court's instructions on the issues of negligence and contributory negligence.

After defining negligence in general terms, the trial judge went on to say: 'Here, however, the relation between plaintiff and defendant transit company was that of public carrier and passenger. This relationship, under the law, places upon the carrier a greater and more constant caution than it does upon an individual operating his own private automobile. The carrier must exercise more than ordinary care. It must exercise the care of a careful man in the same circumstances and the degree of care required must be commensurate with the circumstances calling for the exercise of care, or [as] has been said, it must exercise the highest degree of care or the utmost care in the operation of its busses and in performance of its duty to safely transport to his destination one whom the carrier has taken on as a passenger. A carrier is not an insurer of its passengers but its liability, if any, for injuries to a passenger is based on negligence, that is as I have said, the failure to exercise the degree of care required of it, and if such negligence contributes to an accident as a proximate cause of it, then such negligence is known as actionable negligence. In determining whether the defendant is negligent, the conduct of its operator of the bus is to be judged by the situation then existing and in the light of the situation confronting him, measuring his care but (by) what...