Purington v. Newton.

• Decision Date: 01 October 1946
• Docket Number: No. 1152.,1152.
• Citation: 49 A.2d 98
• Parties: PURINGTON v. NEWTON.
• Court: Vermont Supreme Court

49 A.2d 98

PURINGTON

v.NEWTON.

No. 1152.

Supreme Court of Vermont.

Oct. 1, 1946.

Exceptions from Brattleboro Municipal Court; Edward J. Shea, Presiding Judge.

Action by Ellison S. Purington against Harold A. Newton to recover for damage for an automobile collision. Directed verdict and judgment for defendant, and plaintiff brings exceptions.

Judgment reversed and cause remanded.

Barber & Barber, of Brattleboro, for plaintiff.

Everett Williams, of Springfield, for defendant.

Before MOULTON, C. J., SHERBURNE and STURTEVANT, JJ., and CLEARY and ADAMS, Superior Judges.

SHERBURNE, Justice.

In this action the plaintiff seeks to recover the damages resulting to his automobile from a collision with a car driven by the defendant, and alleged to have been caused by the defendant's negligence. Viewing the evidence most favorably to the plaintiff the following facts appeared: With the permission of the plaintiff his wife drove his car from Northfield, Massachusetts, to Brattleboro to take Caroline A. Whitaker to see a friend at the Osgood Infirmary. In Brattleboro Mrs. Purington drove westerly on Western Avenue, and finding that she was going in the wrong direction, in order to turn around, backed a short distance into Cedar Street, and stopped therein in line with the sidewalk on Western Avenue, from where she could look westerly 150 to 200 feet onto that street. Before starting forward she looked in both directions onto Western Avenue and there was no one in sight, and she then proceeded in low gear and had gone about two car lengths to past the center of Western Avenue and had about completed a left turn to go easterly thereon, and was going 8 to 10 miles per hour, when defendant's car traveling easterly on Western Avenue at a speed of 40 miles per hour collided with the right rear side of her car. As a result of the collision her right rear door, the right running board and the right rear fender were jammed and damaged, and the two cars were locked together. The value of plaintiff's car before the accident was about $950, and it cost $129.75 to repair it after the accident.

After showing that there were signs saying ‘30 Miles per hour speed limit’ conspicuously posted the length of Western Avenue, the plaintiff offered a certified copy of an ordinance adopted and promulgated by the selectmen of Brattleboro several years prior to the accident, that the speed of motor vehicles over Western Avenue should not be over 30 miles per hour. This ordinance purported to be authorized by No. 161 of the Acts of 1927, under which the selectmen of Brattleboro were given power to make ordinances and regulations with respect to the speed of vehicles upon the streets of the town. The copy of the ordinance was objected to because the speed sign was there for anyone to read when passing along the road, and was excluded. Other than as above stated no objection was made to the reception of the copy, and all that the defendant says in his brief is that the plaintiff failed in his offer to properly set forth any legal basis for its admission. The plaintiff in his offer claimed that it was a valid ordinance, declaring what is a reasonable rate of speed, and that it was evidence for the jury in seeking to determine whether the defendant was negligent. In view of P.L. 5150 there can be little question about the validity of such an ordinance. The breach of a safety statute makes at least a prima facie case of negligence and at least gives rise to a rebuttable presumption of the lack of ordinary care on the part of the delinquent. Shea v. Pilette, 108 Vt. 446, 450-452, 189 A. 154, 109 A.L.R. 933. In view of the evidence that the defendant was traveling at the rate of 40 miles per hour the copy should have been received, and its exclusion was prejudicial error.

The plaintiff was permitted to testify to the value of his automobile before the accident. He was not present on the occasion of the accident, but it was shown that he saw the car soon afterwards when it was in the same condition as it was right after the accident. After having testified that he had some judgment as to its then market value at Brattleboro, a question as to what he would say its then market value at that place was was excluded. Further than that he was the owner of the car and had owned several other cars and had paid for the repairs caused by the accident, nothing was shown as bearing upon his qualifications to express an opinion, when the offer as to what he would testify was that it was then worth from $700 to $750, so that the difference between the former and then values exceeded the cost of repairs. The competency of the witness was a preliminary question for the trial court; and its decision is conclusive unless it appears from the evidence to have been erroneous, or was founded on an error of law. Capital Garage Co. v. Powell, 97 Vt. 204, 210, 122 A. 423; Andrews v. Aldrich, 104 Vt. 235, 237, 158 A. 676; Macauley v. Hyde, 114 Vt. 198, 202, 42 A.2d 482. While value is largely a matter of opinion at best, and from the necessities of the case much liberty is indulged in the admission of opinion evidence, and any person who knows the property and has an opinion of its value may give that opinion in evidence for what it is worth (Brown v. Aitken, 90 Vt. 569, 574, 99 A. 265; Houghton v. Grimes, 103 Vt. 54, 61, 62, 151 A. 642), we cannot say that on the evidence the ruling was erroneous as a matter of...