Ready v. Peters

• Decision Date: 04 October 1955
• Docket Number: No. 310,310
• Citation: 117 A.2d 374,119 Vt. 10
• Parties: Mary READY v. Arthur PETERS and Peerless Casualty Company.
• Court: Vermont Supreme Court

Page 374

117 A.2d 374

119 Vt. 10

Mary READY v. Arthur PETERS and Peerless Casualty Company.

No. 310.

Supreme Court of Vermont.

Oct. 4, 1955.

Leary & Leddy, Burlington, for plaintiff.

Edmunds, Austin & Wick, Burlington, for defendant.

Before JEFFORDS, C. J., CLEARY and CHASE, JJ., and HOLDEN and SHANGRAW, Superior Court Judges.

CLEARY, Justice.

This is an action in tort for alleged negligence resulting in injury to the plaintiff. Trial was by jury. The case is here on the plaintiff's exceptions to the exclusion of evidence and to the granting of defendants' motion for a directed verdict at the close of the plaintiff's case.

In passing upon such a motion the evidence must be taken in the light most favorable to the plaintiff and the effect of modifying evidence is to be excluded. If there is any substantial evidence fairly and reasonably tending to support the plaintiff's claim, the question is for the jury. Campbell v. Howard Nat. Bank & Trust Co., 118 Vt. 182, 183, 103 A.2d 96; Fletcher v. Manning, 118 Vt. 240, 241-242, 105 A.2d 264; Conger v. Gruenig, 117 Vt. 559, 562, 96 A.2d 821; Silveira v. Croft, 116 Vt. 420, 421-422, 77 A.2d 911.

On May 10, 1951, which was a bright day with the sun shining, the plaintiff was injured in getting out of a taxicab owned by the defendant Peters and insured by the defendant Peerless Casualty Company. At the time Peters was furnishing two taxicabs to carry passengers attending a funeral and was paid by the funeral director. Peters drove one of the taxicabs and his employee drove the other one. A person named Boucher, who was assisting the funeral director, and a policeman named Beauvais helped persons into the taxicabs at the church and out of the taxicabs at the cemetery. The taxicab in which the plaintiff was a passenger was driven by Peters' employee. This cab was equipped with a footrest fastened to the floor in front of the rear seat by bolts and brackets so that it could be moved forward and backward on the brackets which acted as hinges. When in a backward position the footrest was close to the rear seat and when in a forward position it was about in the middle of the rear floor and about two inches above it. The taxicab was a seven passenger car, equipped with two jump seats, almost the width of the rear seat and wider than the footrest. When not in use, the jump seats folded flush with the back of the front seat and when in use fitted closely together.

The plaintiff's amended declaration alleged that on May 10, 1951, the defendant Peters was the owner of the jitney involved in the accident, insured by the defendant insurance company, duly licensed and regularly used for carrying passengers for hire; that the plaintiff was such a passenger; that it was the duty of defendant Peters to provide a properly equipped and safe vehicle and to warn the plaintiff of the dangers and hazards therein; but that Peters violated his duties and negligently equipped the jitney and caused and permitted it to be equipped with a large footrest which could be moved forward and backward, thereby creating and resulting in a dangerous and unsafe condition, unknown to the plaintiff; that Peters failed and neglected to warn the plaintiff of the existence and location of the footrest; and that the plaintiff while exercising due care and caution and while free from contributory negligence, suffered injury by reason of Peters' negligence.

DB[094][2-4] V.S.1947, § 10044, subsec. IX defines a jitney as a motor vehicle regularly used for carrying passengers for hire. The evidence showed defendant Peters' taxicab was a jitney as defined by our statute. Therefore he was a common carrier, Schott v. Weiss, 92 N.J.L. 494, 105 A. 192, 193, and assumed all the obligations incident to that calling. Chaput v. Lussier, 132 Me. 48, 165 A. 573, 574. He was bound to exercise the utmost care that no injury befall the plaintiff. Sprague v. Smith, 29 Vt. 421, 427. The law required from him the highest degree of care respecting his taxicab and its footrest. Wiley v. Rutland Railroad Co., 86 Vt. 504, 512, 86 A. 808. His duty to his passenger required of him the most watchful care and the most active diligence for her safety. Strong v. Burlington Traction Co., 80 Vt. 34, 36, 66 A. 786, 12 L.R.A.,N.S., 197; Hadley v. Cross, 34 Vt. 586, 588. There was evidence from which the jury, acting fairly and reasonably, could have found that a dangerous condition existed when the footrest was in its forward position and that it was in that position both when the passengers entered the taxicab at the church and when they got out at the cemetery; that when in that position and the jump seats were open for use the footrest could not be seen by a person sitting in a normal position in the rear seat; that the driver who had driven taxicabs, including seven passenger cars, for twenty-five years knew or should have known the above stated facts, knew the number of his passengers and that all the seats were occupied, and should have warned the plaintiff of the existence and position of the footrest and of the danger, especially so, because of her build and size, and her apparent weight and age. Under the circumstances disclosed by the evidence the question whether Peters, either personally or through his employee, was negligent in failing to warn the plaintiff as alleged in the amended declaration should have been submitted to the jury. Silveria v. Croft, 116 Vt. 420, 422, 77 A.2d 911.

The defendants claim they owed no duty to warn the plaintiff because the existence and position of the footrest was obvious and cite Terrill v. Spaulding, 115 Vt. 342, 61 A.2d 611. In that case the plaintiff was a tenant of the defendant and was injured by falling into an opening where a furnace register had been removed by the landlord in order to lay a new rug. The plaintiff knew the register had been removed and that the hole was there and there was no evidence that the defendant saw the plaintiff or knew of her presence before she stepped into the hole. Under such circumstances this Court held the defendant owed no duty to warn the plaintiff. It is clearly distinguishable from the present case.

The defendants also claim that Peters was not directing or controlling the operation of his taxicab at the time of the accident and that Peters' employee was then acting as the servant of the funeral director. They cite 35 Am.Jur. 970, § 541 and Salowitch v. Kres, 147 Md. 23, 127 A. 643. The Maryland case is not in point because the evidence there showed that the defendant without recompense loaned his truck and its driver to another for purposes not connected with the defendant's business. The rule governing such cases in this jurisdiction had been stated repeatedly in our decisions. The master test is: Who has a right to control the offending servant in the performance of his work at the time in question? Various circumstances and things are for consideration, to be sure, in their bearing upon the question just stated, but when that question is answered, the investigation comes to an end. This idea runs through all of our cases. Pappillo's Adm'x v. Prairie, 105 Vt. 193, 195, 164 A. 537, and cases there cited.

In the present case the taxi driver was employed by and paid by the defendant Peters, and was directed by Peters to go to the funeral and to carry the mourners. The plaintiff was one of them. The driver was an experienced one, especially at funerals such as this. He knew where to go and the positions to take with his cab at the church, in the funeral procession and at the cemetery. The only evidence of any control exercised over him by others than the defendant was that after his passengers were seated in his taxicab at the church those assisting at the funeral gave him a signal to go ahead and at the cemetery gave him a signal to pull up and stop and where to go after the...