Rush v. Cody

• Decision Date: 07 May 1935
• Citation: 178 A. 891
• Court: Vermont Supreme Court
• Parties: RUSH v. CODY et al.

178 A. 891

RUSH

v. CODY et al.

Supreme Court of Vermont. Bennington.

May 7, 1935.

Exceptions from Bennington County Court; Olin M. Jeffords, Judge.

Action by George Rush against Clifford Cody and another. Judgment for plaintiff, and defendants severally bring exceptions.

Reversed, and judgment for defendants.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

Jones & Jones, of Rutland, for plaintiff.

Carpenter & Clawson, of Brattleboro, for defendants.

SHERBURNE, Justice.

This is an action to recover damages for injuries received by the plaintiff when run over by a truck. Verdict and judgment were for the plaintiff, and the defendants severally excepted.

The accident happened at about 4 p. m. on September 13, 1932. A gang of men and trucks were engaged in road construction work one-half to three-quarters of a mile below Peru village. This construction began at the top of a hill, and from there had been carried away from the village down the hill about 200 feet. The road was constructed of large stones with layers of coarse and fine gravel; the finer being on top. The gravel was drawn through the village from a point some distance beyond. Defendant Cody was operating one of the trucks and drawing gravel. This truck was owned by defendant Williams. It was a Ford 1 1/2 ton truck, seventeen feet long over all, with dual rear wheels. There were fenders over the front wheels, but none over the rear wheels. It had a steel cab 5 feet wide with two steel doors and a wooden dump body 12 inches high, 5 feet wide and 8 feet long. Thirteen feet from the extreme front of the truck and a little in front of the rear wheels was a crosspiece under the body which projected out 6 inches beyond the body on each side, but did not quite extend to the dual wheels. There was a similar crosspiece under the rear end of the body. The plaintiff's work was to level the gravel after the trucks had dumped it.

It was primary election day, and, although he had not previously communicated his intention to defendant Cody, plaintiff planned to stop work for a time and, after Cody had dumped his load and turned around, to ride up to the village with him and vote, after which he would ride back on another truck and return to work. There was a sharp conflict as to how the accident happened; but for our purposes here we view the evidence most favorable to the plaintiff.

As Cody came along with a load of fine gravel, the plaintiff showed him where to unload on the left side going down, and then loosened the end boards so that the gravel would spread as the truck proceeded with the body in the dumping position; most of the gravel was thus spread about the right thickness, but a heap was dumped over the end boards which the plaintiff had to level off. After unloading, the truck went along about 5 rods to where there was a barway, into which it backed in turning around, and then returned up over the road, while the plaintiff was leveling off the heap of gravel with a shovel and with his back toward the truck. While doing this leveling he heard the truck most of the time. He heard it backing and stop, so that he knew it was turning around. He was so used to it he could tell. He turned his head to the left and saw that the truck's forward wheels were in the middle of the road and the rear wheels were still on the side. At this time the truck was a little over 4 rods from him, and he was standing about 2 feet from the edge of the gravel on Cody's then right-hand side of the road. He had then finished leveling and had just time to face away from the road, threw his shovel upon the bank, and as he turned back to the left to face the center of the road to throw up his hand as a signal for the truck to stop so that he could get on. He knew the truck was very near, and just as he had faced about the fender brushed him a little and some part, he thinks the crosspiece but he did not see, knocked him down and the rear wheel went over him. The trucks had been traveling in the center of the road as the gravel was soft on the sides. He expected that Cody would also keep in the center. Although he knew that the road was only 18 feet wide, he testified that where he stood was nowhere near the usual traveled surface, and that the wheel track nearest to him must have been as much as 7 or 8 feet from him. He was aware...