Raymond Aiken v. Oliver Metcalf

• Decision Date: 02 October 1917
• Citation: 102 A. 330,92 Vt. 57
• Parties: RAYMOND AIKEN v. OLIVER METCALF
• Court: Vermont Supreme Court

102 A. 330

92 Vt. 57

RAYMOND AIKEN v. OLIVER METCALF

Supreme Court of Vermont

October 2, 1917

May Term. 1917.

CASE FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the September Term, 1916, Orleans County, Stanton, J., presiding. Verdict and judgment for defendant. Plaintiff excepted. The opinion states the case.

Judgment affirmed.

Cook & Norton for plaintiff.

J W. Redmond for defendant.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

MILES

This is an action to recover damages for an alleged injury to the plaintiff, occasioned by the defendant's negligence in operating an automobile. The injury occurred on a street in the village of Irasburg, running northerly and southerly along the easterly side of the common in that village. At the time of the injury, the plaintiff was crossing the street diagonally on foot in a northwesterly direction, intending to cross the common in a beaten path used for that purpose and when struck by defendant's car was west of the center of the street, which was from twenty-five to thirty-five feet wide. Just before the accident, the plaintiff came out of a store on the east side of the street, looked north and south, saw no team, auto or person in the street, traveled northerly on the sidewalk or platform of the store about fifty or sixty feet and then started to cross the street as stated above and in doing so looked neither to the north nor south for approaching teams or autos, except only so far as he could see without turning his head. Just before the accident, the defendant was on the westerly side of the common and in coming onto the street on the easterly side of the common he first went south to the southwesterly corner of the common, then turning easterly came to the southeasterly corner of the common, where he turned northerly onto the street in which the accident occurred, about two hundred feet south of where the plaintiff attempted to cross it. As he came onto that street, there was nothing to prevent his seeing the plaintiff while attempting to cross the street, if he had looked. He admitted that he did not blow the horn or give any signal, in making the sharp turns at the southwest and southeast corners of the common and did not see the plaintiff until just before the collision and not in season to avoid it. The plaintiff's testimony tended to show that he did not see the automobile until about the time he was struck by it and not in time to avoid it.

The case was tried by jury and verdict and judgment were rendered for the defendant. Only two exceptions were reserved by the plaintiff, the first of which was a request to charge as follows: "If you find the plaintiff was negligent in attempting to cross the street at the time he did, and you find the defendant, had he been looking, would have discovered the plaintiff when he had reached a place of danger and had been able to avoid him, then the plaintiff would be entitled to recover," which the court refused. The plaintiff based this exception upon the last clear chance rule and upon no other ground. There is more or less confusion, if not conflict, in the treatment of this subject by the courts in different jurisdictions; but this Court is committed to the doctrine that the last clear chance rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. The law on that subject, as recognized in this State, is well stated in French v. Grand Trunk Ry. Co., 76 Vt. 441 58 A. 722, that when a traveller has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximate cause of the injury and will not preclude a recovery, but that it is equally true that if a traveller, when he reaches the point of collision, is in a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. The rule that if the plaintiff's negligence proximately contributes to his own injury he cannot recover, is so well settled in this State that it needs no citation of...