Reid v. Abbiati.

• Decision Date: 04 May 1943
• Docket Number: No. 1716.,1716.
• Citation: 32 A.2d 133
• Court: Vermont Supreme Court
• Parties: REID v. ABBIATI.

32 A.2d 133

REID

v.ABBIATI.

No. 1716.

Supreme Court of Vermont.

May 4, 1943.

Exceptions from Barre Municipal Court; H. William Scott, Judge.

Action for damage to property by Howard Reid against Eligio Abbiati. Verdict and judgment for plaintiff, and defendant brings exceptions.

Reversed and remanded.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

José M. Monte, of Barre, for plaintiff.

John Molla, of Barre, for defendant.

JEFFORDS, Justice.

This is an action of tort for property damage sustained in an automobile accident. Trial was by jury with a resulting verdict and judgment for the plaintiff. The case is here on defendant's exceptions which are to the refusal of the Court to grant his motion for a directed verdict; to the refusal of the Court to charge as requested; and to matters of evidence. We will discuss the exceptions in the order named.

The motion was based on the grounds that the plaintiff had failed to show any negligence on the part of the defendant which was a proximate cause of the accident and that the evidence shows, as a matter of law, that the plaintiff was guilty of contributory negligence. In disposing of this question it is necessary to determine what facts the jury might reasonably have found from the evidence viewed in the light most favorable to the plaintiff. So viewed, it appears that on the morning of February 16, 1942, the plaintiff was driving down Hill Street which runs north and south in the city of Barre. The right wheels of his car were on ice and the left wheels on white frost which covered the road in its center and caused that part of the highway to be “greasy”. His car was traveling at about twenty miles an hour or slower down a very slight grade. Hill Street intersects Camp Street nearly at a right angle. The plaintiff was very familiar with the route he was taking. As he approached the intersection he looked to see if it was clear. When about fifty feet from it he saw a fire truck of the city of Barre approaching the intersection from his left. This truck was being driven by the defendant. Plaintiff's vision of cars approaching the intersection from his left was obstructed by a house and a tree so that it was impossible for him to see such traffic until his car was from fifty to one hundred feet from the intersection.

When the plaintiff saw the truck he immediately applied his brakes and tried to bring his car to a stop but he lost control of it due to the slippery condition of the road and it skidded along the highway in nearly a straight line until just before it reached the intersection when it turned a little to the right and collided with the fire truck. Several witnesses testified that plaintiff's car left skid marks which according to them extended from fifty to sixty feet along the highway. The plaintiff testified that he did not slow down because he was approaching an intersection. But he also testified: “I was going slow all the time. I didn't have to slow my speed.” He did not blow his horn as he approached the intersection.

The fire truck with its bell ringing was responding to an alarm and was traveling faster than plaintiff's car as each approached the intersection. As the truck approached and came into the intersection without a change of speed neither the driver nor the assistant fire chief who was riding on the truck and had charge of it looked to either side but kept their eyes straight ahead. The cars entered the intersection at about the same time. The collision took place a little to plaintiff's right of the center of the intersection. The whole front of plaintiff's car struck the right rear mud cap on the truck. The truck weighed about eight tons and the force of the impact caused its rear end to swerve around about a foot and jarred loose certain rather heavy articles which were on the truck as a part of its equipment.

It is very clear that a jury question was presented as to the negligence of the defendant. It is true that by virtue of the provisions of subdiv. II of sec. 5110 of the Public Laws the fire truck had the right of way at the intersection but it is also provided in subdiv. III of that section that “All intersecting highways shall be approached and entered slowly and with due care to avoid accident.” This latter provision applies to the operator of a vehicle of any kind. Ferraro v. Earle, 105 Vt. 243, 248, 164 A. 886, 888. The situation in the present case in respect to the question now under consideration is very similar to that in the Ferraro case. In that case, it is true, the fire truck entered the intersection with a red traffic light against it but here the defendant's view to his right was obstructed until he was nearly in the intersection. Both situations presented hazards to be taken into consideration by the respective drivers. The following language used in the Ferraro case is pertinent here: “While the fire truck was favored with the statutory right of way and the act of driving it through the intersection against a red light did not, of itself, constitute negligence as a matter of law, it does not follow that Earle was privileged to proceed in disregard of the rights of others. Jasmin v. Parker, 102 Vt. 405, 416, 148 A. 874, and cases cited. The right must be exercised in a reasonable manner in view of the circumstances. *** ‘Due care’ is care commensurate with the circumstances calling for its exercise. The precautions to be taken increase with the hazards. The situation confronting the defendant Earle required him to be very alert and watchful to avoid injury to others; that is, he was bound to exercise the care of a prudent person, who was driving a fire truck to a fire at the place and under the circumstances here disclosed.”

In the former case it appeared the defendant had an unobstructed view of the approach of the other car and that the fire truck was traveling about twenty miles per hour as it approached the intersection. We held the evidence made it a jury question as to whether the defendant was negligent in respect of keeping a proper lookout for cars approaching from the direction from which that occupied by the plaintiff was coming and in respect of the speed at which the fire truck was driven into the intersection. The evidence as to speed is much the same here as there. There it appeared the defendant did not see the other car until after he had entered the intersection. Here the evidence taken in the light most favorable to the plaintiff is to the effect that this defendant not only did not see the plaintiff's car until such time, but in addition, that neither the defendant nor the other fireman were keeping any lookout for traffic approaching the intersection from the north or south. As before indicated, there was ample evidence for the jury on this issue of defendant's actionable negligence.

We are also of the opinion that the evidence presented a jury question as to plaintiff's contributory negligence. According to his version he could not stop his car because it skidded on the slippery surface of the road. He admits that from the time he applied his brakes his car was out of his control. But that condition is not necessarily negligence. Tucker v. San Francisco, Cal.App., 290 P. 924; Linden v. Miller, 172 Wis. 20, 177 N.W. 909, 12 A.L.R. 665. This we have also held, in effect, many times. In L'Ecuyer v. Farnsworth, 106 Vt. 180, 182, 170 A. 677, we said: “It is a matter of common knowledge, of which we take notice, that the sudden and unexpected skidding of an automobile is one of the natural hazards of driving cars on icy roads and it may happen to the best of operators. *** The mere fact that the defendant's car skidded does not of itself constitute negligence.” This latter statement is also found in Johnson v. Burke, 108 Vt. 163, 167, 183 A. 495; Standard Oil Co. v. Flint, 108 Vt. 157, 160, 183 A. 336; Williamson v. Clark, 103 Vt. 288, 291, 153 A. 448. See also Hatch v. Daniels, 96 Vt. 89, at page 94, 117 A. 105. Mere failure to anticipate the possibility of skidding does not as a matter of law establish negligence under all circumstances. Nicholson v. Twin State Fruit Corporation, 113 Vt. 59, 29 A.2d 819, 821. The skidding of the car would only be the basis for a finding of negligence if it was due to some negligent conduct on the part of the plaintiff. Nichols v. Nichols, 126 Conn. 614, 13 A.2d 591; DeAntonio v. New Haven Dairy Co., 105 Conn. 663, 136 A. 567. See also Johnson v. Burke, supra, 108 Vt. at page 168, 183 A. 495.

The plaintiff was charged with knowledge of the treacherous condition of the highway and the possibility of skidding resulting from this condition. He was also charged with knowledge of the additional hazard of approaching a dangerous intersection and of the mandate contained in P. L. sec. 5110, subdiv. III, supra. This situation required him to take due care to so operate his car that it would not skid, that is, he was bound to exercise the care of a prudent person who was driving at the place and under the circumstances here disclosed. Ferraro v. Earle, supra. If he was so driving he is not to be held negligent, under the rules above set forth, merely because the car skidded and the collision occurred. It was for the jury to say whether under the circumstances the skidding was caused by excessive speed, by negligent application of the brakes or by any other negligent act or omission to act on the part of the plaintiff disclosed by the evidence. Negligence in any or all of these respects does not so clearly appear as to warrant our holding, as a matter of law, that the skidding was brought about by the negligence of the plaintiff. See Martin v. Holway, 126 Conn. 700, 14 A.2d 38, for a case much in point on its facts with the present case. Also 5 Am.Jur. 656, sec. 279.

The defendant also says that we should hold the plaintiff contributorily negligent as a matter of law because he failed to blow his horn when approaching the...