Slate v. Hogback Mountain Ski Lift, Inc.

• Decision Date: 06 September 1960
• Docket Number: No. 1148,1148
• Court: Vermont Supreme Court
• Parties: Charles H. SLATE v. HOGBACK MOUNTAIN SKI LIFT, INC.

Page 851

163 A.2d 851

122 Vt. 8

Charles H. SLATE v. HOGBACK MOUNTAIN SKI LIFT, INC.

No. 1148.

Supreme Court of Vermont.

Sept. 6, 1960.

A. Luke Crispe, James L. Oakes, Brattleboro, for plaintiff.

Fitts & Olson, Brattleboro, for defendant.

Before HULBURD, C. J., and HOLDEN, BARNEY, SHANGRAW and SMITH, JJ.

HULBURD, Chief Justice.

The defendant, as its name indicates, is a ski lift operator. Its development lies along Route 9 between Brattleboro and Bennington. On the morning of January 29, 1958, the defendant's employee, Brittain, was busy removing the snow, which had fallen during the night before, from the defendant's parking area. For this purpose he was using a motor truck called a Dodge power wagon which, with the snowplow attached, was twenty feet in length. Brittain had plowed long enough to accumulate three large piles of snow which he had deposited along the westerly (generally southerly) shoulder of the highway. In order to push this snow further back from the highway Brittain had maneuvered his truck so that it was across the highway, and at right angles to it, opposite the piles of snow. The road at this point was twenty feet wide exclusive of the shoulders.

At the critical time here in issue, the rear of Brittain's truck reached out over the easterly (generally northerly) gravelled edge of the highway, while the front end, with its plow, projected into the left lane of travel of one approaching the point from Brattleboro. The evidence is such as to permit a jury to find that for one so approaching, not only was the right lane completely blocked by the truck but there was not enough clearance between the front of the truck and the piles of snow to permit a car to pass to the left of it in the left lane. As the truck stood, crossways of the road, the position into which Brittain had maneuvered was so tight that to extricate himself would require at least 'two moves' to get the truck 'headed' with the road.

It was with the defendant's truck situated as we have described it that the plaintiff came on the scene while proceeding from Brattleboro to Bennington. The plaintiff was driving a truck weighing, as loaded, about eight tons. He was traveling at a speed of from twenty to twenty-five miles an hour. It was down-grade, and the road curved just before the plaintiff reached where the defendant was plowing. For this reason the plaintiff was not able to see the power wagon until he reached a point about two hundred to two hundred thirty feet away. Upon coming into view and seeing the way ahead blocked, the plaintiff started blowing his horn and applying his brakes. He went on to testify, 'I didn't want to go into the ditch, I certainly didn't want to hit him broadside. While I was applying my brakes I was sliding. I saw he was blocking my way so I slammed the brake on. I cut the wheels and came across the road and hit approximately where the mail box was.' What he hit was not the snowplow but 'quite a tall snow bank' which covered 'a mound of loam' located about thirty feet from the defendant's truck. In the collision, the plaintiff felt pain 'snap in his back'. This evidently signalled a back injury attributable to the twist and wrench received upon ramming into the pile as stated and is the basis of the plaintiff's claim.

The plaintiff testified that prior to the accident he had slammed on his brakes to test the road conditions when going over the top of the mountain. He saw that the road was slippery and so he 'shifted down.' As he approached the scene of the accident he was not warned by any sign or otherwise of the danger which lay ahead. As the plaintiff put it--'When I came over the hill, I was confronted with this object in the middle of the road. I put my brakes on and cramped my wheels. When I cramped my wheels I went into a slide. The slide is what prevented me from stopping.' Following the accident, the defendant's employee complimented the plaintiff on the way he had avoided hitting him and told him 'he had done an exceptionally good job in stopping his truck.'

With the evidence standing as we have stated, the jury returned a verdict in favor of the plaintiff. The defendant claims error. He argues, first, that the plaintiff was guilty of contributory negligence as a matter of law because, he says, the plaintiff was operating his vehicle at a speed greater than that which would enable him to stop within the distance he could see ahead. He points out that we have applied this rule in a variety of cases: within the range of headlights when operating in the dark, Steele v. Fuller, 104 Vt. 303, 309, 158 A. 666, when visibility was obscured by smoke, Palmer v. Maceille et al., 106 Vt. 500, 507, 175 A. 31, or by fog Powers v. Lackey, 109 Vt. 505, 507, 1 A.2d 693. However, we have always made it clear that the rule is not one of invariable application. Welch v. Stowell, Vt., 159 A.2d 75, 77. In Chaffee v. Duclos, 105 Vt. 384, 386, 166 A. 2, 3, we quoted with approval from Kaufman v. Hegeman Transfer & Lighterage Terminal, 100 Conn. 114, 118, 123 A. 16, 17 that if one were required to be able to stop within the distance he can see ahead at all times, it 'would force the traveler to assume that the highway was liable to be obstructed, and in view of this to so travel that he should not collide with any obstruction in the highway, however negligently it may have been maintained upon it. It would thus impose upon the traveler the exercise of extraordinary care instead of ordinary care under the circumstances.' The case before us presents just such an obstruction. The circumstances of the accident itself demonstrate the fallibility of the 'assured clear-distance-ahead doctrine' obtaining in some jurisdictions. We think that in the circumstances of this case it was sufficient if the plaintiff was operating at such speed and under such control that he would have been able to stop had he been given that warning of the approaching danger as would normally be given by one, who, in the exercise of due care, was deliberately carrying on an activity which would tend to block the highway for a considerable space of time.

We decline to hold that the plaintiff was guilty of contributory negligence as a matter of law as contended by the defendant. It was for the jury to say under the circumstances of this case, aided as they were by a view of the scene of the accident, whether the plaintiff failed to operate with reasonable prudence, and it was proper for them, if they saw fit, to relieve the plaintiff of the general requirement that an operator should be able to stop in time to avoid collision with an object in the range of his vision. Welch v. Stowell, Vt., 159 A.2d 75, 77. Compare, Francis v. Henry, 399 Pa. 369, 160 A.2d 455, 460.

Defendant's second assignment of error is closely related to the one just considered. It pertains to the sudden emergency doctrine about...