Ross T. Wright v. Zephir Godin

• Citation: 182 A. 189,108 Vt. 23
• Parties: ROSS T. WRIGHT v. ZEPHIR GODIN
• Decision Date: 07 January 1936
• Court: Vermont Supreme Court

182 A. 189

108 Vt. 23

ROSS T. WRIGHT v. ZEPHIR GODIN

Supreme Court of Vermont

January 7, 1936

November Term, 1935.

Plaintiff's Negligence as Bar to Recovery---Contributory Negligence Burden of Proof---Effect of Inability to Find on Issue of Contributory Negligence---Effect of Omission of Essential Fact from Findings---Doctrine of Last Clear Chance, Pleadings Necessary---Effect of Finding on Issue Not Pleaded.

1. In a negligence case, negligence of plaintiff must have formed a proximate cause of the accident to constitute a bar to his recovery.

2. In a negligence case, the burden of showing freedom from contributory negligence is upon the plaintiff.

3. In a negligence case, statement of trial judge in findings of fact that he was unable to find that plaintiff's negligence was a contributing cause of the collision does not satisfy the rule as to burden of proof, which requires an affirmative finding as to absence of contributory negligence.

4. While Supreme Court will indulge all reasonable intendments in favor of judgment below and read doubtful findings in support of it, if it can reasonably do so, it cannot supply the omission of an essential fact not fairly inferable from the facts found.

5. To avail himself of last clear chance doctrine, plaintiff must allege in his declaration facts which give rise to duty on part of defendant to act for the protection of the plaintiff after he has discovered, or ought to have discovered, the peril in which the plaintiff has been placed by reason of his own negligence.

6. In action for negligence resulting in automobile accident, where plaintiff did not allege in his declaration facts sufficient to justify applications of last clear chance doctrine, held finding that defendant had the last clear chance to avoid the collision did not conform to issues made by pleadings and would not support judgment for plaintiff.

ACTION OF TORT for negligence to recover damages resulting from automobile accident. Plea, general issue. Trial by Orleans municipal court, A. E. Bishop, Municipal Judge. Judgment for the plaintiff. The defendant excepted. The opinion states the case. Reversed and remanded with leave to plaintiff to apply.

Judgment reversed, and cause remanded with leave to the plaintiff to apply.

Paul Gilioli and John J. Moke, of Littleton, N.H for the defendant.

W M. Wright for the plaintiff.

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

OPINION

MOULTON

This action in tort is the outcome of an automobile collision. It was tried without a jury; the judgment was for the plaintiff, and the defendant excepted.

The findings of fact are extremely meager. As relating to the question of liability, which is the only one important here, they are as follows:

"I find the defendant operated his car in a careless and negligent manner in traveling 30 miles per hour on a slippery road and failing to pass an oncoming car by turning sufficiently to the right when he had plenty of room to do so.

"I find the plaintiff was negligent in the operation of his car in that on his own statement he would have been unable to stop his car behind the milk team without a collision therewith, but I am unable to find that the negligence of plaintiff was a contributing cause of the accident, because I am unable to find that at any time he was any appreciable distance to the left of the center of the highway as he was then travelling.

"I find further that even though they were both negligent, the defendant had the last clear chance to avoid the accident by turning to the right, so that the negligence of the defendant becomes sole proximate cause."

The defendant raises no question concerning the finding that he was negligent, but he insists that, since the plaintiff was also negligent, there can be no recovery, and he objects to the finding that he had the last clear chance because no facts showing the applicability of this doctrine are alleged in the declaration.

The mere fact that the plaintiff was negligent is not, of course a bar to his recovery. To have such an effect the failure to exercise ordinary care must have contributed to the accident; that is, it must have formed a proximate cause of it. Negligence by itself does not necessarily bring injurious...