Shaw v. Moore

• Decision Date: 18 October 1932
• Citation: 162 A. 373
• Court: Vermont Supreme Court
• Parties: SHAW v. MOORE.

162 A. 373

SHAW

v. MOORE.

Supreme Court of Vermont. Addison.

Oct. 18, 1932.

Exceptions from Addison County Court; John S. Buttles, Judge.

Action by Charles J. Shaw, administrator, against Parnell Moore. From judgment for defendant on directed verdict, plaintiff brings exceptions.

Affirmed.

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

Jones & Jones, of Rutland, and W. E. Eno, of Middlebury, for plaintiff.

Fenton, Wing, Morse & Jeffords, of Rutland, for defendant.

GRAHAM, J.

This action is brought to recover damages resulting from the alleged wrongful death of plaintiff's intestate, Helen Shaw, which occurred on July 25, 1930, while she was riding as a guest passenger on the running board of a Buick sedan, which was owned and operated by the defendant. The case was tried below upon a charge of gross negligence on the part of the defendant, and upon the plaintiff's claim of Miss Shaw's freedom from contributory negligence. At the close of the evidence the trial court directed a verdict for the defendant on the ground that the evidence considered most favorable to the plaintiff failed to show gross negligence, and also on the ground that Miss Shaw was guilty of contributory negligence as a matter of law. To these rulings and orders the plaintiff excepted.

The plaintiff's right of recovery is controlled, as he concedes, by No. 78, Acts of 1929, which provides that: "The owner or operator of a motor vehicle shall not be liable in damages for injuries received by any occupant of the same occasioned by reason of the operation of said vehicle unless such owner or operator has received or contracted to receive pay for the carriage of said occupant, or unless such injuries are caused by the gross or willful negligence of the operator." The changes effected in our law of negligence by the enactment of this statute have recently been considered and stated by this court in Sorrell v. White, 103 Vt. 277, 153 A. 359. In that case we also pointed out the distinction between the terms "gross" and "willful" negligence, and held, in effect, that they differed in kind and not merely in degree. In Sorrell v. White, supra, at page 284 of 103 Vt., 153 A. 359, we have defined the term "willful negligence," but now for the first time the term "gross negligence," as used in the statute, comes before us directly for definition. This court has recognized and applied, without statutory provision, the term "gross negligence" to the relationship established by a gratuitous bailment (Carpenter v. Branch, 13 Vt. 161, 37 Am. Dec. 587; Spooner v. Mattoon, 40 Vt. 300, 94 Am. Dec. 395; Whitney v. First Nat. Bank, 55 Vt. 154, 45 Am. Rep. 598); but the term has never been defined in our cases. Other courts have frankly admitted the difficulty of formulating a satisfactory definition. Lord Cranworth (then Baron Rolfe) in Wilson v. Brett, 11 M. & W. 113, and.

Willis. J, in Grill v. General Iron Screw Colliery Co, L. R. 1 C. P. 600, stated that gross negligence is ordinary negligence with a vituperative epithet. See Briggs v. Taylor, 28 Vt. 180, 185. However, the law of Massachusetts has long recognized the doctrine of definitive degrees of negligence (Massaletti v. Fitzroy, 228 Mass. 487. 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088), and the Supreme Judicial Court of that state, while admitting the inherent impossibility of defining "gross negligence" with the utmost precision (Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 506, 4 A. L. R. 1185), has given to it a meaning of sufficient distinctness to be applied usefully by courts and juries to particular facts before them. Cook v. Cole, 273 Mass. 557, 174 N. E. 271, 273. We adopt the definition of that court. Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forget fulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. Altman v. Aronson, supra; Massaletti v. Fitzroy, supra; Marcienowski v. Sanders, 252 Mass. 65, 147 N. E. 275; Learned v. Hawthorne, 269 Mass. 554, 169 N. E. 557; Cook v. Cole, supra; Lee v. Chamberlin, 84 N. H. 182, 148 A. 466 (governed by the law of Massachusetts).

There is no dispute between the parties as to the rule of law to be applied; both parties in their briefs urge us to adopt the definition just stated. Likewise, the material facts respecting the defendant's conduct are not in dispute. The only question is whether the undisputed facts bring the case within the rule. The plaintiff argues that the evidence made it a jury question whether the defendant was guilty of gross negligence; the defendant, on the other hand, maintains that the evidence was of such character that reasonable men can fairly draw but one conclusion from it, that is, that the defendant was not as a matter of law guilty of any act or omission constituting gross negligence.

On the evening in question the defendant, and Miss Shaw, accompanied by three companions, drove to Waterhouse's beach at Lake Dunmore in defendant's automobile and there went bathing. After bathing, the members of the party left the lake about 10:30 or 11 o'clock p. m. in defendant's car to return to Higgins Tavern about one mile away, where they were to change from their bathing suits. The three friends got into the back seat and rode in a kneeling position to protect the cushion from their wet bathing suits. The defendant took the driver's seat in front. No one occupied the other front seat. The defendant asked Miss Shaw twice to get into the car and ride in the front seat. One of the other passengers asked her at least once to ride inside the car. She refused to do this and said she preferred to ride on the running board, and that she would be all right there. She stood on the right running board by the post between the two doors, facing the car, about in the center, but a little nearer the front. The position on the car taken by Miss Shaw for the purpose of the ride...