Rich v. Hall
| Decision Date | 01 October 1935 |
| Citation | 181 A. 113,107 Vt. 455 |
| Parties | MARY RICH v. FRANK HALL |
| Court | Vermont Supreme Court |
May Term, 1935.
Gross Negligence, No Concrete Rule Can Be Established---Evidence Effect of Contradictions in Testimony---P. L. 5110 Subdivisions II and III, Rights of Vehicles Thereunder---Intersecting Highways, Rights of Vehicles Approaching Intersection---Defense of Sudden Emergency, When Available---Failure to Judge Speed of Another Vehicle Approaching Intersection---Duty of Operator Approaching from Disfavored Direction---Rate of Speed as Factor in Determining Right of Operator Approaching from Disfavored Direction---Effect of Heavy Traffic on Duty of Operator at Intersection---Jury Question on Gross Negligence.
1. Gross negligence is equivalent to the failure to exercise a slight degree of care.
2. No concrete rule can be established which will determine what constitutes gross negligence upon any given state of facts each case depends for its solution upon the determination of the particular facts in the light of the accepted principles of law.
3. When a witness testifies twice in one way and once in another, it cannot be said that the evidence was all one way, it being for the jury to say what part of the testimony they will believe and what part they will reject.
4. While P. L. 5110, subdivisions II and III, providing that except as otherwise provided, all vehicles shall give the right of way to other vehicles approaching at intersecting highways from the right, and that all intersecting highways shall be approached and entered slowly and with due care to avoid accident, is specific in its provisions, it does not necessarily give the vehicle approaching a highway intersection from the favored direction exclusive rights under all circumstances over the vehicle approaching from the disfavored direction; the determination of each case must depend upon its particular facts.
5. The rule as to rights of vehicles approaching intersecting highways is in substance as follows: if there is no one approaching the intersection within such distance as reasonably to indicate danger of interference or collision the operator of the vehicle approaching from the disfavored direction is under no obligation to stop or wait, but may proceed to enter and pass through the intersection as a matter of right; but if two vehicles approach a highway intersection so nearly at the same time or at such rate of speed that if both proceed, each without regard to the other, a collision or interference between them is reasonably to be apprehended, it is the duty of the vehicle approaching from the disfavored direction to yield the right of way to the vehicle approaching from the favored direction, and if under such circumstances the operator of the vehicle approaching from the disfavored direction fails to yield the right of way, and such failure to yield is a proximate cause of the accident, he is guilty of actionable negligence.
6. In an action for negligence, the defense that he became confused when confronted by a sudden emergency cannot be invoked by a defendant if his own negligence contributes to cause the emergency.
7. Where defendant testified that after first seeing a vehicle approaching on an intersecting highway he kept his attention straight ahead and paid no further attention to such vehicle, it cannot be said that he misjudged the speed of such other vehicle, since it appears from his own testimony that he never judged or attempted to judge its speed.
8. It is the duty of the operator of a motor vehicle to watch another vehicle approaching an intersection from the favored direction effectively, with the degree of care which a careful and prudent man would have exercised in like circumstances, and he is charged with knowledge of what he would have seen, if he had looked.
9. Where two motor vehicles approach an intersection, the rate of speed at which the vehicle from the favored direction is approaching is an important, if not a determinative, fact in establishing the right of the operator of the vehicle approaching from the disfavored direction to enter and cross the intersection ahead of the other vehicle.
10. The fact that there is heavy traffic on two intersecting highways is a condition affecting merely the degree of care required of the operator of a vehicle approaching the intersection from the disfavored direction, to be considered by the jury with the other evidence in the case.
11. In action for gross negligence by guest passenger against operator of a motor vehicle, where defendant, after first seeing vehicle approaching on intersecting highway on his right, while he was at least eighty feet from the intersection, kept his attention straight ahead and paid no further attention to the other vehicle until another passenger warned him of its approach when he was about ten feet from the intersection, it cannot be said as a matter of law that there is no evidence of gross negligence in the operation of defendant's car and that such negligence was not a proximate cause of the plaintiff's injuries.
ACTION OF TORT for personal injuries suffered by plaintiff while riding as guest in defendant's automobile. Plea, general issue. Trial by jury at the December Term, 1934, Bennington County, Davis, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
Judgment affirmed.
Harold E. Whitney and A. L. J. Crispe for the defendant.
Collins M. Graves and Fenton, Wing & Morse for the plaintiff.
Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.
This is an action of tort to recover for personal injuries suffered by the plaintiff in an automobile accident. There was a trial by jury and a verdict and judgment for the plaintiff.
On July 4, 1934, the plaintiff suffered personal injuries while riding as a gratuitous guest in an Essex sedan operated by the defendant, when the Essex car and a Pontiac car collided, and which collision she alleged was caused by the gross negligence of the defendant in the operation of the Essex car.
The only question for review here is whether the trial court erred in denying the defendant's motion for a directed verdict, based upon the lack of evidence tending to show gross negligence as required by P. L. 5113.
Gross negligence has been defined by this Court in Shaw, Admr. v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139, and in Dessereau v. Walker, 105 Vt. 99, 101, 163 A. 632, and it is not necessary to repeat what is said therein, except to say that gross negligence is equivalent to the failure to exercise a slight degree of care.
At the time of the collision, and just prior thereto, the Essex car was traveling in a general northerly direction over the cement highway leading from Bennington to North Bennington. The collision occurred at a point between the two villages which is referred to in the evidence as "Percey's Corner." At this point, U.S. Route No. 7, which is a cement highway and the main highway leading from Manchester to Bennington, effects a junction from the southwest with the highway leading from Bennington to North Bennington. The collision occurred in the intersection of these highways.
The highway from Bennington to North Bennington is eighteen feet wide as it enters the intersection. It is straight as it approaches, enters, and passes through the intersection. Route No. 7 is twenty-one feet wide as it enters the intersection. It approaches the intersection on a slight curve. There was a heavy traffic on both highways. The day was clear and the visibility was good. The defendant was familiar with the road and he had traveled over it a great many times. As he approached the intersection he was traveling at a rate of speed of about thirty miles an hour.
The defendant changed his testimony some during the trial, but viewing the evidence in the light most favorable to the plaintiff, as we must, the jury would have been justified in finding the following facts: As the defendant approached the intersection he did not lower his rate of speed. When he was from eighty to one hundred and fifty feet southerly of the intersection he saw the Pontiac car approaching on his right from the southwest on Route No. 7. The Pontiac car was then from one hundred and forty to one hundred and fifty feet from the intersection. At that time he could not exactly judge the rate of speed at which it was approaching and he did not attempt to judge its rate of speed. After he first saw the Pontiac car approaching the intersection he did not watch it or give it any attention because he thought he would arrive at the intersection first and cross it. He did not see the Pontiac car again until he was about ten feet from the intersection when Mrs. Anderson, who was riding on the front seat, exclaimed: "Watch it, Frank," or "Look out, Frank." The Pontiac car was then about ten feet from the intersection. He immediately turned his car to the left to cross to his left-hand side of the highway. As he turned across the highway he started to apply his brakes, and then he accelerated the speed of his car...
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