Smith v. Blow & Cote, Inc.

• Decision Date: 03 December 1963
• Docket Number: No. 1958,1958
• Citation: 124 Vt. 64,196 A.2d 489
• Court: Vermont Supreme Court
• Parties: Everett H. SMITH v. BLOW AND COTE, INC.

Page 489

196 A.2d 489

124 Vt. 64

Everett H. SMITH v. BLOW AND COTE, INC.

No. 1958.

Supreme Court of Vermont.

Dec. 3, 1963.

Ready & Brown, St. Albans, for plaintiff.

Theriault & Joslin, Montpelier, for defendant.

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

SMITH, Justice.

This is an action of tort for damages brought by reason of a collision between a tractor-trailer dump truck owned by the defendant and operated by one Philip Marshia, its employee, and a motor vehicle owned and operated by the plaintiff. Jury trial in the Washington County Court resulted in verdict and judgment for the plaintiff. The case is here on the defendant's exceptions to the denial of its motion for a verdict directed in its favor at the close of all the evidence in the court below, as well as the lower court's denial of a later motion made by defendant, after verdict, that the verdict be set aside and judgment entered for the defendant. The motion of the defendant for judgment in its favor, notwithstanding the verdict, is in substance and nature the same as its motion for a directed verdict, and we will so treat it here. Welch v. Stowell, 121 Vt. 381, 383, 159 A.2d 75.

The accident in question took place on March 23, 1961, in the nighttime, on Route 2, between the villages of Bolton and Waterbury. The truck of the defendant was parked partially upon the highway, and the accident took place when the car of the plaintiff, travelling in a southerly direction, came in collision with the tailgate of the defendant's truck which protruded some 3 feet 2 inches into the right hand lane being travelled by the plaintiff.

The motion for a verdict directed in its favor made by the defendant was based upon two grounds. The first ground was 'that there is no evidence of defendant Blow and Cote's negligence in any of the respects alleged which was a proximate cause of the accident complained of.' The second ground was 'that the plaintiff, Everett H. Smith, was guilty of negligence proximately contributing to the cause of the accident.'

In considering the grounds of this appeal we must take the evidence in the light most favorable to the prevailing party, and the effect of modifying evidence must be excluded. The weight of the evidence and the credibility of the witnesses are for the jury to determine, and all conflicts are to be resolved against the excepting party. The motion cannot be granted if there is any evidence fairly and reasonably tending to justify the verdict. Langevin v. Gilman, 121 Vt. 440, 445, 159 A.2d 340.

The evidence disclosed that on the night in question defendant's driver, Philip Marshia, was driving the truck owned by the defendant in a southerly direction from Bolton Village toward Waterbury. The truck was a dark green in color, with tires of the same blackness as the pavement upon which it was travelling, and with the tailgate of the truck obscured with mud and stone dust.

At a point in his progress the driver noticed that the lights on the truck were starting to blink on and off, and after proceeding down a long grade he stopped his truck on a reasonably level and straight part of Route 2, popularly known as 'Bolton Flats.' He pulled his truck as far to the right of the highway as was possible at his stopping point, but 3 ft. 2 in. of the truck still extended into the right hand lane of travel. A side road ran off Route 2 toward a quarry a short distance south of the point where the driver parked his truck, which would have allowed him to park his truck entirely off Route 2. This road was known to the driver but he did not see fit to use it at that time, although after the accident he availed himself of this side road to turn his truck around.

The truck was parked in the place and position described for some fifteen minutes before it was struck by the vehicle of the plaintiff. During this period of time the truck was without lights of any kind, nor were flares placed along the road by defendant's driver. The evidence was that the driver was standing on the front bumper of the truck during this period, making adjustments of some nature under the hood of the vehicle, with the aid of a flashlight.

The highway at the point where the accident occurred, was 22 ft. 4 in. wide, with a six-foot shoulder easterly of the north bound lane. The road is straight for more than 1000 ft. northerly from the point of impact but a downgrade of the road ended only 100 ft. southerly of the same point.

Stopping or parking a vehicle upon the used portion of a highway so as to interfere with traffic on such highway, is a violation of 23 V.S.A. § 1044, one of the so-called safety statutes. Other such safety statutes are 23 V.S.A. §§ 1303-1304 providing that trucks shall carry flares, and which also provides that such lighted flares shall be set out along the highway at stated intervals when a truck is disabled on a travelled portion of the highway at a time when lights should be displayed on such a vehicle.

It is true, as the defendant suggests, that the stopping of a vehicle on the public highway 'does not constitute negligence unless the halting of the vehicle was the proximate cause of the accident that followed.' Young v. Lamson, 121 Vt. 474, 478, 479, 160 A.2d 873, 876. But, as the same opinion goes on to say, 'It was their (the jury's) province to find whether the defendant's vehicle was halted in such a way that it interfered with the movement of traffic and whether the interference caused the accident within the sense of the statute.'

The evidence that the truck of the defendant was parked in such a manner as to partially obstruct the highway for a considerable length of time in the nighttime, without lights, and with no warning flares set out on the road, constituted a violation of the safety statutes. Such violation of the safety statutes made out a prima facie case of negligence on the part of the defendant. Agnes Smith v. Grove, 119 Vt. 106, 111, 119 A.2d 880. The answer to the question of whether such negligence was the proximate cause of the accident depended upon the determination of the jury whether the truck of the defendant was left standing in the highway in such a way that it obstructed traffic within the statutory prohibition, and whether the interference caused the accident within the meaning of the statute.

The question of whether the violation of the safety statutes, and the...