Rosamond Hunter v. William H. Preston

• Decision Date: 02 May 1933
• Citation: 166 A. 17,105 Vt. 327
• Parties: ROSAMOND HUNTER v. WILLIAM H. PRESTON ET AL
• Court: Vermont Supreme Court

166 A. 17

105 Vt. 327

ROSAMOND HUNTER v. WILLIAM H. PRESTON ET AL

Supreme Court of Vermont

May 2, 1933

February Term, 1933.

Action---Pleading Charging Joint Liability against Several Defendants---G. L 1791---Automobiles---Application of Acts 1931, No. 79 Relating To Parking of Automobiles on Highways---Parking of Automobiles on City Streets---Negligence---Proximate Cause---Jury Question---Liability Where Two or More Proximate Causes Combine To Produce Injury---Joint and Several Liability---Acts 1929, No. 69 Negligence in Parking Car with Tail Lights Unlighted---Election as to Defendants---Sufficiency of Evidence To Make Jury Question as to Defendant's Gross Negligence---Elements of "Wilful Negligence"---Insufficiency of Evidence To Show Wilful Negligence---Instructions to Jury---Circumstances Justifying Reversal as to All Defendants Where Errors Require Reversal as to Some of Defendants.

1. Declaration in tort against three defendants, setting forth negligent acts of different defendants relied upon in separate paragraphs in each of which also appeared allegation that such acts caused plaintiff's injuries, held not open to construction that it set forth causes of action against three defendants severally and in separate counts.

2. Although one paragraph of declaration in tort against three defendants alleged that defendants jointly and severally caused injuries complained of, held that, notwithstanding such inapt language, declaration as whole charged joint liability only.

3. Under G. L. 1791, all that is necessary to constitute good declaration is that it set forth in brief and simple language facts relied upon and relief demanded.

4. Provisions of Acts 1931, No. 79, prohibiting parking of motor vehicles, upon paved, improved, or used part of highway to interfere with traffic, held to apply only to highways outside cities and villages, regardless of whether or not they have local traffic ordinances, since such municipalities are empowered to regulate parking of cars on streets and highways within their limits by Acts 1931, No. 84.

5. In absence of city ordinance prohibiting it, parking car on side of street eighteen feet wide, while motorist went on errand to other side of street, was not unlawful.

6. In

ACTION OF TORT for negligence against three motorists, by guest riding in car of one of them, whether one of defendants negligently maintained and operated lights on his parked car so as to blind driver of car in which plaintiff was riding held for jury.

7. In such action, whether negligence, if any, of one of defendants in maintaining and operating lights on his parked car so as to blind driver of car in which plaintiff was riding as guest, caus-

ing him to run into another parked, car, was proximate cause of accident, held for jury.

8. There may be more than one proximate cause of automobile collision.

9. Where two or more proximate and efficient causes combine to produce injury, recovery may be had if defendant is responsible for any one of them, though he is not responsible for others.

10. Whenever separate and independent acts or negligence of several persons, by concurrence, produce single and indivisible injury which would not have occurred without such concurrence, each is responsible for entire result, and may be sued jointly or severally at election of party injured.

11. Provisions of Acts 1929, No. 69, that motor vehicles shall not be operated on public highway in careless or negligent manner, held declaratory of common law of negligence.

12. Whether person was negligent in parking car, with its tail lights unlighted, partly on and partly off used portion of street on opposite side of street from another parked automobile whose lights were on, and so near as to prevent passing of other cars in either direction on that street, and, whether negligence, if any, was proximate cause of collision of automobile in which plaintiff was riding as guest, held for jury.

13. In action of tort for negligence against three motorists to recover damages for injuries received by plaintiff in automobile collision while riding in automobile as guest of one of such defendants, held that plaintiff was not required to elect which of defendants she would proceed against.

14. In such action, knowledge of defendant, driving car in which plaintiff was guest, of slippery condition of street, of presence of parked automobiles in street, light of one of which blinded him until near another parked car, speed at which he drove without regular chains on car, distance from parked car at which he applied brakes, and other evidence, held to make matter of his gross negligence question for jury.

15. To be "wilfully negligent," where one has no intent to injure, he must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally and probably result in injury.

16. In action of tort for negligence against three motorists to recover for injuries received by plaintiff in automobile collision while riding in automobile as guest of one of such defendants, held that, although host may have been negligent in operation of car under conditions known to him, since evidence showed that he had no knowledge, when blinded by lights of parked car, of presence of another parked car on opposite side of street, without tail lights burning, with which he collided, he could not have been conscious that his conduct would naturally and probably result in injury by collision therewith, and was therefore not guilty of wilful negligence.

17. Instruction to jury that defendant, in action of tort for negligence by person injured in automobile collision, had violated provisions of Acts 1931, No. 79, by parking his car unattended on side of city street eighteen feet wide, while he went on errand to other side of street, and that this was circumstance which might be used against him, held reversible error, since statute only applied to highways outside cities and villages.

18. In action of tort for negligence against three motorists to recover damages for injuries received by plaintiff in automobile collision while riding in automobile as guest of one of such defendants, held that refusal of trial court to instruct jury that there was no evidence on which such latter defendant could be found guilty of wilful negligence was prejudicial error.

19. In such action, where error required reversal as to two of defendants, held that, under circumstances of case, justice required reversal as to all.

20. Where there are two or more defendants, and judgment is based upon cause of action of such nature that it might work injustice to one if it were to remain intact against him while reversed for error as to others, Court may reverse judgment in toto and grant new trial for all.

ACTION OF TORT for negligence against three motorists to recover damages for injuries received by plaintiff in automobile collision while riding in automobile as guest of one of defendants. Pleas, general issue. Trial by jury at the September Term, 1932, Chittenden County, Sturtevant, J., presiding. Verdict for the plaintiff against each and all of defendants, and judgment thereon. Each of the defendants excepted. The opinion states the case.

Judgment reversed as to all defendants, and cause remanded.

Austin & Edmunds for the defendant Alvin R. Midgley.

Chas. F. Black, Robert W. Ready, and J. Boone Wilson for defendants Preston and Hinsdale.

Aaron H. Grout and A. Pearley Feen for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

SLACK

The plaintiff seeks to recover for personal injuries that she sustained when defendant Midgley's car in which she was riding as a guest passenger collided with a car operated by defendant Preston about 8.30 o'clock in the evening of December 25, 1931, on North Avenue in the city of Burlington.

The declaration as amended alleges, in substance, in paragraph 2, that defendant Hinsdale drove his car south on said avenue and parked it, unattended, on the westerly part of the traveled portion of the street in a manner to prevent a car passing in either direction on that street provided another car was standing thereon opposite his car; that the headlights on his car were so adjusted that they would throw a glaring light in the eyes of the driver of a car approaching from the opposite direction, and that they were left in that condition when the car was parked; that such careless and negligent acts on his part, without fault of the plaintiff, caused her injuries.

The following paragraph alleges that defendant Preston drove his car north on said avenue, and stopped it on the paved part thereof, alongside and within a short distance of Hinsdale's car in a manner to prevent a car traveling in either direction on that street from passing the Preston car when another car was standing on the west part of the street opposite his car, and so that a view of his car was obstructed and hidden by the glaring lights of the Hinsdale car from the driver of a car coming from the south; that Preston's car did not have a tail light or any signal light on the rear thereof; and that such careless and negligent acts of Preston caused plaintiff's injuries, without her fault.

Paragraph 4 alleges that defendant Midgley operated his car in a grossly and wilfully careless and negligent manner, in that he drove it on an icy and slippery street without chains to prevent it from slipping and skidding; that he drove too fast considering the condition of the street; that his brakes were inadequate and out of repair, and that he did not have his car under proper control; that by reason thereof it collided with the Preston car and caused the plaintiff's injuries,...