Powers v. Wilson

Decision Date08 April 1940
Docket NumberNo. 290.,290.
Citation110 F.2d 960
CourtU.S. Court of Appeals — Second Circuit

Leonard F. Wing and Fenton, Wing & Morse, all of Rutland, Vt., for appellant.

Edwin W. Lawrence and Lawrence & O'Brien, all of Rutland, Vt., for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.


This is an appeal from a judgment for the plaintiff under § 5113 of the Public Laws of Vermont which makes the driver of a motor car liable to a "guest occupant" of the car only in case he has been guilty of "gross or wilful negligence" in its operation. The statute is of a not infrequent kind, and the phrase "gross negligence" has naturally occasioned difficulty here as it has elsewhere. Sorrell v. White, 103 Vt. 277, 153 A. 359; Shaw v. Moore, 104 Vt. 529, 162 A. 373, 86 A.L.R. 1139; Steele v. Lackey, 107 Vt. 192, 177 A. 309; Kelley v. Anthony, Vt., 8 A.2d 641. It is doubtful whether the vast amount of comment on the phrase has greatly helped to elucidate it. Probably at bottom it serves to describe that extreme degree of disregard for the safety of others that arouses indignation in others and demands retribution. It is not enough that the actor shall have been momentarily inattentive; he must deliberately embark upon an activity whose risk to others far outweighs any tangible interest that can be realized. Restatement of Torts, § 500, Commend d. In the case at bar the defendant was driving a party of two young women and another young man at night upon a road at a rate which one witness estimated at 75 miles, and which the nature of the damage showed to have been something of that order. He failed to make allowance for a turn to the left, collided with the abutment of a culvert, upset the car and killed the two women. He offered no excuse except that he had gone to sleep, testimony which the jury need not have accepted and which is not very probable. Curiously enough, there seems to have been no suspicion that he was in liquor at the time. People will no doubt differ as to the culpability they pronounce upon such conduct; perhaps there are those who would say that, though such speeds were dangerous, they did not show so great a disregard of consequences as to demand moral reprobation. But it is certainly true that there are many who would regard them as reprehensible in the highest measure. Not only do they imperil life in case of a blow-out, but they make exceedingly dangerous all turns necessary to follow the road. Moreover, they are not the consequence of momentary inattention, but of a deliberate purpose to enjoy the exhilaration of the peril they create. Certainly a jury was justified in finding the defendant guilty of gross negligence; in their place we should have done the same.

The defendant also complains of the amount of the judgment. The jury brought in a verdict for...

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16 cases
  • Dagnello v. Long Island Rail Road Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 24, 1961
    ...has been one of seemingly endless controversy. Our own decisions on the point have not been consistent. Compare, e. g., Powers v. Wilson, 2 Cir., 1940, 110 F.2d 960, with Comiskey v. Pennsylvania R. R., 2 Cir., 1956, 228 F. 2d 687, 688. Indeed, Professor Moore classifies us with the Eighth ......
  • Werthan Bag Corp. v. Agnew, 11578
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 4, 1953
    ...on the ground of excessiveness where the damages are unliquidated and there is no fixed measure of mathematical certainty. Powers v. Wilson, 2 Cir., 110 F.2d 960; United States Can Co. v. Ryan, 8 Cir., 39 F.2d 445, certiorari denied 282 U.S. 842, 51 S.Ct. 23, 75 L.Ed. 748. This is particula......
  • Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 10205.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • September 21, 1951
    ...It is so Ordered. KERNER, Circuit Judge, concurs in the result. 1 Bissonette v. National Biscuit Co., 1 Cir., 100 F.2d 1003; Powers v. Wilson, 1 Cir., 110 F.2d 960; Herzig v. Swift & Co., 2 Cir., 154 F.2d 64; Sun Printing & Publishing Ass'n v. Schenck, 2 Cir., 98 F. 925; Reid v. Nelson, 5 C......
  • Oklahoma Natural Gas Co. v. McKee
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • June 24, 1941
    ...was that the damages awarded by the jury were excessive or inadequate. Armit v. Loveland et al., 3 Cir., 115 F.2d 308, 314; Powers v. Wilson, 2 Cir., 110 F. 2d 960; United States Can Co. v. Ryan, 8 Cir., 39 F.2d 445, certiorari denied 282 U.S. 842, 51 S.Ct. 23, 75 L.Ed. 748; Fairmount Glass......
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