Ruth Steele v. Paul Lackey

• Decision Date: 02 February 1935
• Citation: 177 A. 309,107 Vt. 192
• Parties: RUTH STEELE v. PAUL LACKEY
• Court: Vermont Supreme Court

177 A. 309

107 Vt. 192

RUTH STEELE v. PAUL LACKEY

Supreme Court of Vermont

February 2, 1935

October Term, 1934^[*]

This case was originally heard as above, but reargued at the February Term, 1935.

Automobiles---Operation of Automobile When Driver Has Involuntarily Fallen Asleep---Question of Negligence of Driver in Permitting Himself To Fall Asleep or in Operating Automobile When He Knew, or Ought To Have Known, He Was in Danger of Falling Asleep---Factors Entering into Determination of Question of Negligence of Driver of Automobile Who Fell Asleep While Operating Car---Gross Negligence---Jury Questions---Invited Quest Not Required To Anticipate Driver of Automobile Will Omit Exercise of Due Care---Inadequate Briefing and Effect as to Exception---Evidence---Admissions---Question Not Raised Below---Harmless Error---Waiver of Exception by Failure To Brief.

1. One cannot be held negligent for what he does or fails to do in operation of automobile after he has involuntarily fallen asleep, but may be negligent in permitting himself to fall asleep, or in operating automobile when he knew, or ought to have known, that sleep might come upon him.

2. Whether motorist was negligent in permitting himself to fall asleep, or drove automobile when he knew, or ought to have known, that he might fall asleep, is to be determined not only from fact of sleep, but also from preceding events to discover his condition as to fatigue and alertness of mind.

3. Gross negligence lies between ordinary negligence and reckless or wanton misconduct which are elements comprised in definition of wilful negligence.

4. In ACTION OF TORT for gross negligence against driver of automobile by guest, where former fell asleep while driving at a rapid speed at a late hour of night, resulting in car leaving road, plunging down a bank, and colliding with a tree, inconsistencies and contradictions in plaintiff's testimony which was not impossible, held for jury to weigh and consider, where there was sufficient evidence to enable jury, acting reasonably, to find that driver knew, or ought to have known, that he was likely to fall asleep, and that in these circumstances, his operation of car was conduct indicating an indifference to duty owed to plaintiff as his guest, or in utter forgetfulness of her safety, hence defendant's motion for directed verdict was properly denied.

5. In such action, where evidence did not conclusively show that plaintiff knew of defendant's procuring and using intoxicating liquor, which evidence tended to show caused him to go to sleep, and where she testified that she had observed nothing strange in his bearing and conduct, and did not know that he had been drinking, question as to whether her conduct in riding with him under circumstances constituted contributory negligence, held for jury.

6. Invited guest is not bound to anticipate that automobile driver will omit exercise of due care.

7. Exception to ruling of trial court overruling defendant's motion for directed verdict on ground that guest in automobile had assumed whatever risk attended operation of car by defendant, held inadequately briefed where all that was said regarding it was statement of ground, that motion was overruled, and exception taken; and such inadequate briefing constituted waiver of exception.

8. In action of tort for gross negligence against driver of automobile by guest, where former fell asleep while driving at a rapid speed at late hour of night, causing car to leave road and resulting in personal injuries to plaintiff testimony of defendant, when under examination by plaintiff's counsel, that he had pleaded guilty to operating automobile in careless and negligent manner causing accident resulting in personal injuries, held admissible as admission by defendant that his conduct was not justifiable on occasion in question.

9. Objection to evidence not advanced in trial court is not for consideration by Supreme Court on exceptions.

10. When specific objections are made below, excepting party is confined to them in Supreme Court.

11. In action of tort for gross negligence against driver of automobile by guest, instruction which defined wilful negligence which was not issue in case, if error, held harmless, where jury were distinctly told that wilful negligence was not issue, but that definition was given so that they might better understand definition of gross negligence, no issue outside evidence being thereby introduced.

12. In such action, instruction that it was unnecessary for plaintiff to introduce evidence bearing directly upon her freedom from contributory negligence, but that it was sufficient, if from consideration of all evidence, jury were satisfied by preponderance of evidence that she had been guilty of no act which was proximate cause of accident, if error, held harmless, since contributory negligence need not be negatived by direct testimony, and no issue outside evidence was introduced.

13. Objection to charge, not briefed, is waived.

ACTION OF TORT for gross negligence against driver of automobile by guest. Plea, general issue. Trial by jury at the March Term 1934, Washington County, Sturtevant, J., presiding. Verdict and judgment for the plaintiff. The opinion states the case. Affirmed.

Judgment affirmed.

Fred E. Gleason for the defendant.

J. Ward Carver for the plaintiff.

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

OPINION

MOULTON

This is an action brought under the provisions of P. L. 5113, to recover for personal injuries alleged to have been sustained by the plaintiff, riding as an invited guest in the automobile operated by the defendant, through the gross negligence of the latter. The verdict and judgment below were for the plaintiff and the cause is before us on the defendant's exceptions. After an opinion had been prepared and handed down, the defendant moved for a reargument. The motion was granted and the issues involved were again presented upon briefs and oral argument. The following opinion embodies the views of the Court.

The parties left the village of Northfield Falls at 7.30 to 8.00 P.M. on May 30, 1932, to attend a dance at Woodbury Pond. They made a brief stop in Barre, and arrived at the scene of the festivities at 8.45 to 9.00 P.M. They left for home sometime between 12.30 and 1.00 P.M. and had proceeded several miles when the defendant who, by his own testimony, was driving at a speed of 40 to 50 miles an hour, fell asleep, and, as a result, the car left the road, plunged down the bank and collided with a tree. The road curved at the place and the automobile went straight ahead. Both parties received injuries. The defendant testified that he fell asleep suddenly and without warning; that he had not felt sleep coming on before the instant of the accident; that he felt perfectly normal, and that normally he felt the approach of sleep before it came upon him. He also testified that during the stop at Barre he obtained a bottle containing 1 1/2 pints of red sour wine which was intoxicating; that he and the plaintiff drank from it on the way, finishing the bottle at Woodbury shortly before the dance, between 8.30 and 9.00 P.M., and drank nothing thereafter. According to his testimony, the wine produced no feeling of exhilaration or drowsiness. The plaintiff denied all knowledge of the wine and that she drank any intoxicating liquor. She said that she did not know that the defendant had been drinking; that to her knowledge he showed no effects of liquor; she smelled no odor upon his breath, and observed nothing strange in his talk, his walk, or his dancing. He was driving at a high rate of speed, but she made no complaint. She was, she said, always in his immediate presence during the dance, although she sometimes danced with others, and she did not know where he was during such times. On the way home they talked intermittently. The motorcycle policeman, who arrived at the scene of the accident some half hour after it occurred, testified that he smelled liquor on the defendant's breath, and so did the physician who attended him, and who also said that he was so far under the influence of drink that he fell asleep upon the operating table after his wounds had been sutured, while the lights were fully on. The doctor detected no smell of liquor on the plaintiff. The driver of the ambulance beside whom the defendant rode on the way to the hospital noticed no odor of alcohol upon him.

The principal question briefed by the defendant and raised by a motion for a directed verdict is whether the court was warranted in submitting to the jury the question whether the defendant was guilty of gross negligence. It is needless to repeat here the definition of that term, as given in Shaw v. Moore, 104 Vt. 529, 531, 162 A 373, 86 A.L.R. 1139, and followed and applied in the subsequent decisions of Franzoni v. Ravenna, 105 Vt. 64, 65, 163 A. 564; Dessereau v. Walker, 105 Vt. 99, 102, 163 A. 632; Hunter v. Preston, 105 Vt. 327, 338, 166 A. 17; Anderson v. Olson, 106 Vt. 70, 71, 72, 169 A. 781; and L'Ecuyer v. Farnsworth, 106 Vt. 180, 183, 170 A. 677. It is said in Blood v. Adams, 269 Mass. 480, 169 N.E. 412, 413, that: "Voluntarily to drive an automobile on a public street at any time of day or night with eyes closed, or to yield to sleep while operating such kind of a dangerous machine as is an automobile on a public highway, is to be guilty of a degree of negligence exceeding lack of ordinary care, and is a manifestation which may be found by judge or jury to be gross negligence within any reasonable definition of that phrase." Since the definition of gross negligence adopted by the Supreme Judicial Court of Massachusetts has also been adopted by this Court ( Shaw v. Moore, supra...