Smith v. Brasseur

• Decision Date: 02 October 1956
• Docket Number: No. 959,959
• Citation: 125 A.2d 815,119 Vt. 287
• Parties: William E. SMITH v. Yves A. BRASSEUR.
• Court: Vermont Supreme Court

Page 815

125 A.2d 815

119 Vt. 287

William E. SMITH v. Yves A. BRASSEUR.

No. 959.

Supreme Court of Vermont.

Oct. 2, 1956.

Pierce & Drown, Newport, for plaintiff.

Witters, Longmoore & Akley, St. Johnsbury, Rudolph J. Daley, Newport, for defendant.

Before JEFFORDS, C. J., CLEARY, ADAMS and HULBURD, JJ., and HAROLD C. SYLVESTER, Superior Judge.

CLEARY, Justice.

This is an action of tort for the alleged negligence of the defendant in operating his automobile, which resulted in personal injuries to the plaintiff. Trial was by jury with a verdict and judgment for the plaintiff. At the close of the plaintiff's case, and at the close of all the evidence, the defendant moved for a directed verdict in his favor. After verdict and before judgment the defendant moved that the verdict be set aside and that judgment be entered for the defendant. To the overruling of each of these motions the defendant was allowed exceptions. He has briefed them together and his only claim is that the plaintiff was guilty of contributory negligence as a matter of law.

Viewed in the light most favorable to the plaintiff the jury, acting fairly and reasonably, could have found the following facts. The accident occurred about 4:10 p. m. on December 14, 1953 on the hard surfaced highway running in a general northerly and southerly direction from North Troy, Vermont to the Canadian border. The locus was at the outer limit of the village of North Troy and within a 25 miles per hour speed zone. There were no sidewalks or crosswalks in the vicinity and the highway was not much travelled at that time of the year. The plaintiff's home was on the westerly side of the highway. There were no houses on the easterly side of the road.

Just previous to the accident the plaintiff and his neighbor, Leonard White, were passengers in the automobile of a fellow employee, Chick Hamelin. White left the car a few hundred feet southerly of the plaintiff's house. Hamelin next stopped his car on the easterly side of the road, opposite the north side of the plaintiff's house. At this point one could see northerly along the highway 300 feet to a curve in the road. The plaintiff got out of the car and looked north when he shut the door. No car was then in sight in that direction. The plaintiff then walked in a southerly direction diagonally across the road toward the driveway of his home, a distance of 24 feet and, when about 1 1/2 feet easterly of the center white line of the road, was struck by the defendant's car and was severely injured. The point of contact was inside the fender of the car. The plaintiff never looked north at any time after he entered upon the highway but continually looked south where he could see at least 500 feet. No car was coming from the south and he knew there was no danger from that direction. The defendant did not blow his horn as he approached the plaintiff.

The defendant claims that it cannot avail the plaintiff to say that he looked toward the north when he shut the door after alighting from the Hamelin automobile, that he could then see the road clear up to the curve and he saw no traffic coming from that direction. The defendant relies on Eagan v. Douglas, 107 Vt. 10, 15, 175 A. 222; Bressett v. O'Hara, 116 Vt. 118, 121, 70 A.2d 238; Hastings v. Soule, 118 Vt. 105, 109, 100 A.2d 577; and Smith v. Grove, 119 Vt. 106, 111, 119 A.2d 880, for the proposition that it will be presumed that the plaintiff saw what was within the range of his vision if he had looked and it will not avail him to say that he looked and did not see what he could not have helped seeing if he had looked. The defendant claims that either the plaintiff did not look as the plaintiff testified, or he must have seen the defendant's car, and, in either case, the plaintiff was guilty of contributory negligence as a matter of law.

In arriving at that conclusion, he says the evidence is that the defendant was going not over 25 miles an hour. This was his testimony. But the plaintiff's witness Hamelin testified that, when the plaintiff opened Hamelin's car door to get out, Hamelin did not notice any cars approaching from the north; that, after Smith got out, Hamelin started his car in low gear and had gone some 140 or 150 feet from the point where he had stopped before he met a car coming from the north and that was the only car he met after he started his car. The plaintiff testified that, after getting out of Hamelin's car, he started to cross the road and had walked 24 feet diagonally toward the south, at possibly three miles an hour, when the defendant's car hit him. From this evidence the jury, acting fairly and reasonably, could have inferred that the defendant was going considerably faster than 25 miles an hour and that, when the plaintiff looked toward the north, the defendant's car was not within the plaintiff's line of vision. Because the evidence was such as to afford ground for opposing inferences of fact, it was for the jury to consider, so that defendant's claim is not sustained. Sivret v. Knight, 118 Vt. 343, 349, 109 A.2d 495; In re Peters' Estate, 116 Vt. 32, 38, 69 A.2d 281; Horicon v. Estate of Langlois, 115 Vt. 470, 476, 66 A.2d 16, 9 A.L.R.2d 195; Collins v. Fogg, 110 Vt. 465, 469, 8 A.2d 684.

The defendant also claims that we should hold the plaintiff guilty of contributory negligence as a matter of law because he failed to look again to the north from the time he entered upon the hard surfaced road, until he was hit by the defendant's car. This presents a more difficult question. The undisputed evidence is that, at the place of the accident, the hard surfaced road is 18 3/4 feet wide, that, at the moment of contact, the plaintiff was inside the fender of the defendant's car, and, as stated supra, the jury could have found that he was then 1 1/2 feet easterly of the center white line of the road.

The burden was on the plaintiff to produce evidence, direct or circumstantial, from which the jury could reasonably infer that he was in the exercise of due care. Aiken v. Metcalf, 90 Vt. 196, 198, 97 A. 669; Hill v. Stringer, 116 Vt. 296, 299, 75 A.2d 657. At first glance, it must be admitted, it is difficult to say that he met the requirements of this rule, for he could have avoided the accident easily enough if he had looked toward the north while he was crossing the highway. But in considering whether he was in the exercise of due care, several legal rules must be kept in mind.

The plaintiff and defendant had equal and reciprocal rights in the use of the highway, and each was bound to so make use of his own right as not to interfere with that of the other. Aiken v. Metcalf, supra, 90 Vt. 198, 97 A. 670; Bombard v. Newton, 94 Vt. 354, 356, 111 A. 510, 11 A.L.R. 1402; Peno v. Bushey, 110 Vt. 260, 262, 4 A.2d 339. Each was bound to exercise due care; but the degree of watchfulness which this rule imposed upon them was not the same. The defendant was driving a machine, which, on account of its speed and weight, was capable of doing great damage, and the law puts upon one so situated a greater and more constrant caution. He was bound to exercise care commensurate with the dangers arising from a lack of it. While the rule which applies to the plaintiff is the same in terms, it is not the same in its practical application. Aiken v. Metcalf, supra.

The look and listen rule applicable to one approaching a railroad crossing and the constant vigilance rule do not apply to a pedestrian using the public highway. Aiken v. Metcalf, supra, 90 Vt. 199, 97 A. 670; Dervin v. Frenier & Carmody, 91 Vt. 398, 401, 100 A. 760; Hammond v. Harjohn, 95 Vt. 308, 313, 115 A. 100; Eagan v. Douglas, 107 Vt. 10, 15, 175 A. 222; Rush v. Cody, 107 Vt. 326, 330, 178 A. 891; Duchaine v. Ray, 110 Vt. 313, 320, 6 A.2d 28; Colburn v. Frost, 111 Vt. 17, 22, 9 A.2d 104; Izor v. Brigham, 111 Vt. 438, 443, 17 A.2d 236.

The law does not impose on him these hard and fast rules of conduct. It simply requires that he shall exercise for his own safety the measure of care that a prudent man would exercise in the same circumstances. But as circumstances vary, so do the practical requirements of the rule vary. A pedestrian on an unfrequented highway is not held to the same degree of vigilance when he crosses a road as is the man who attempts to cross a busy city street crowded with traffic. The circumstances and dangers in each particular case are always to be taken into account in determining what is due care or the evidence of it. Aiken v. Metcalf, 90 Vt. 196, 199, 97 A. 669; Eagan v. Douglas, 107 Vt. 10, 15, 175 A. 222; Parro v. Meagher, 108 Vt. 182, 188, 184 A. 885; Duchaine v. Ray, 110 Vt. 313, 319, 6 A.2d 28; Colburn v. Frost, 111 Vt. 17, 21, 9 A.2d 104; Hill v. Stringer, 116 Vt. 296, 300, 75 A.2d 657.

When a pedestrian is about to cross a street or road he must use the care of a prudent man, but the law does not undertake to further define the standard. The law does not say how often he must look, or precisely how far or when or from where. Aiken v. Metcalf; Eagan v. Douglas; Rush v. Cody; Duchaine v. Ray; Colburn v. Frost; Hill v. Stringer, all supra. As stated in Aiken v. Metcalf [90 Vt. 196, 97 A. 670]: "It cannot be laid down as a rule, * * * that in all cases, without regard to the extent to which the street is usually traveled, it is negligence for one on foot to cross it, or walk in it, without looking in each direction to see if a vehicle may be approaching.' * * * This expresses the settled law of the subject.'

Moreover, the pedestrian has a right to assume, nothing to the contrary appearing, that the automobile driver will obey the law. Aiken v. Metcalf, supra. And this means, when applied to the case in hand, that the plaintiff had a right to assume that the defendant, or any other automobile driver, would not drive in a careless or negligent manner, would not exceed the speed limit, would not drive to the left of the center line of the highway, V.S. 47, §...