Steele v. Fuller

• Decision Date: 04 February 1932
• Citation: 158 A. 666
• Parties: STEELE v. FULLER.
• Court: Vermont Supreme Court

158 A. 666

STEELE

v. FULLER.

Supreme Court of Vermont. Rutland.

Feb. 4, 1932.

Exceptions from Rutland County Court; Allen R. Sturtevant, Judge.

Action by Edward Steele against A. A. Fuller, in which there was judgment for plaintiff. On defendant's exceptions.

Reversed, and judgment for defendant for costs.

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

Bert H. Stickney, of Rutland, for plaintiff.

Jones & Jones, of Rutland, for defendant.

THOMPSON, J.

The plaintiff seeks to recover damages for personal injuries and damage to his automobile received in an automobile collision. There was a trial by jury, and a verdict and judgment thereon for the plaintiff. The defendant excepted. At the close of the evidence, the defendant moved for a directed verdict. The motion was denied. The only ground of the motion that we consider is that the plaintiff was guilty of contributory negligence as matter of law.

The collision occurred on July 13, 1929, about 9 o'clock p. m. At that time, it was rather dark and cloudy. The defendant, driving a Cadillac car, was traveling south on the main highway from Brandon to Rutland. He had a flat tire and stopped to change tires. The highway had a tarvia surface nineteen feet wide where the defendant stopped. About 250 or 300 feet south from that place is the brow of a hill which descends to the south. The defendant stopped his car on his right of the center of the highway with his right wheels about eighteen inches from the edge of the tarvia. For thirty or forty rods north of his car, and south to the brow of the hill, the highway is straight and nearly level, but with a slight upgrade to the south. The highway is of sufficient width so that another car could have passed defendant's car on either its left or right.

While the defendant was changing tires the plaintiff, who had driven automobiles fourteen years, approached from* the north. He was driving a 1928 Chrysler sedan, model "52." His car was equipped with four wheel hydraulic brakes, and the headlights that came on that model of car. The plaintiff was traveling about twenty miles an hour as he approached defendant's car. A car traveling from the south passed the plaintiff about fifty feet north of defendant's car. The plaintiff was blinded by its headlights, and he did not see defendant's car until he was about twenty feet from it. He applied the emergency brake immediately when he saw he was going to run into it, but he was too close to stop and he collided with its rear while he was traveling about twenty miles an hour. He did not apply the foot brake. After the plaintiff saw defendant's car, he did not attempt to pass it on its left. He testified as follows as to this matter:

"Q. Did you turn your car to the left at all? A. No.

"Q. Was there any reason why you couldn't? A. No. sir.

"Q. Was there any obstruction in your way to prevent your driving your car to the left to pass the Fuller car? A. No.

"Q. You saw it twenty feet away? A. About twenty feet.

"Q. You already passed this other car going in the opposite direction? A. Ayeah.

"Q. So there was no obstruction as far as you could see, Mr. Steele, after you saw the Fuller car why you couldn't turn to the left? A. I was too close to it.

"Q. That was twenty feet, you were too close? A. Mhhmh, the brakes didn't hold to stop me.

"Q. Did they slow you up at all? A. I don't remember.

"Q. You don't remember that? A. No."

The plaintiff also testified that when he was one hundred feet, and when he was sixty feet, from defendant's car he was not blinded by the headlights of the car approaching from the south, but he did not see defendant's car from either of those distances. He first testified that the headlights of his car would show objects in the road about thirty feet ahead; that the brakes were in good condition; and that the emergency brake would stop the car, when traveling twenty miles an hour, in about thirty feet. The following questions were then asked him, and answers given:

"Q. So you think you could stop your car exactly within the vision of your headlights? A. No, couldn't, slow it down some, couldn't exactly stop.

"Q. What, you couldn't exactly stop? A. No, just emergency brake, probably forty feet, stop still, slow down.

"Q. So you would have to go forty feet before you could stop your car? A. Mhhmh.

"Q. With the application of emergency brake? A. Yes."

The plaintiff's son testified that the lights of the Chrysler car were tested about a month before the accident; that the lights were twenty-one candle power; that he drove the car in the night during the week of the accident with the same lights as of the night of the accident, and that they would show an object in the road fifty fet ahead.

It appears from the uncontradicted evidence of Robert Keith, a state inspector of motor vehicles, who had driven a Chrysler "52" equipped with twenty-one candle power lights, in the nighttime, that if the brakes were in good mechanical condition they would stop such a car traveling twenty miles on hour in less than twenty-two feet; and if the lights were properly focused and adjusted they would show a substantial object in the road one hundred and fifty feet ahead of the car.

The negligent act of the defendant on which the plaintiff bases his right to recover is that the defendant did not have a lighted tail-lamp as required by the provisions of section 71, No. 70, Acts of 1925, and because of the absence of such light he ran into the defendant's car. While the evidence is conflicting, the jury by its verdict necessarily found that the defendant's tail-lamp was not lighted as required by the statute, and that the absence of such light was a proximate cause of the collision. We do not disturb this finding of the jury. The jury also found that the plaintiff was free of contributory negligence. The sufficiency of the evidence to support this finding is challenged by the defendant's motion for a directed verdict.

It is true, as argued by the plaintiff, that contributory negligence is ordinarily a question of fact for the jury, where the law has settled no rule of diligence, but when the material facts are undisputed, and are so conclusive that but one reasonable deduction can be drawn therefrom, the question is one of law for the court. Parker, Adm'r, v. Smith, 100 Vt. 130, 135 A. 495; Crichton v. Barrows Coal Co., 100 Vt. 460, 139 A. 252. And the burden is on the plaintiff to show that he was free from negligence that contributed in the least degree to the accident. Bianchi v. Millar, 94 Vt. 378, 382, 111 A. 524; Wellman, Adm'r, v. Wales, 97 Vt. 245, 254, 122 A. 659; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 216, 147 A. 346, 66 A. L. R. 1109. The plaintiff's conduct in operating his car as he approached defendant's car and at the time of collision is not disputed. The testimony of such conduct comes from his own lips. See, also, Gallagher v. Montpelier & Wells River R. R., 100 Vt. 299, 305, 137 A. 207, 52 A. L. R. 744; Yardley v. Rutland R. Co., 103 Vt. 182, 188, 153 A. 195.

While the plaintiff had the right to assume that other motorists would not obstruct the highway unlawfully, and would show the statutory lights if they stopped, he could not for that reason omit any of the care that the law demanded of him; as the rule applies only in favor of one whose own conduct measures up to that of a prudent and careful man in like circumstances. Page v. Mazzei (Cal. App.) 299 P. 119; Cushing Refining, etc., Co. v. Deshan, 149 Okl. 225, 300 P. 312.

This court has frequently said that motorists on the public highways have equal and reciprocal rights to the use thereof. The legal standard of care required of them is unvarying and alike at all times—that of a prudent man under all the circumstances; but experience has led the courts to adopt, and the Legislatures to enact, certain rules of diligence which are intended to standardize the rights and duties of users of the highways. These rules are additional factors to be considered in a given situation by which negligence may be measured and determined between conflicting claimants exercising a common right, and they may be determinative in many cases. Jasmin v. Parker, 102 Vt. 405, 416, 148 A. 874; Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 63 A. L. R. 396.

One rule is that there is a duty at all times imposed upon the operator of a motor vehicle to maintain a lookout for persons and property on the highway, and to use reasonable care to avoid inflicting injuries on such persons or property, Smith v. Gould (W. Va.) 159 S. E. 53; and he is chargeable with knowledge of objects in the highway which are in plain view. Harrington v. Rutland R. Co., 89 Vt. 112, 119, 94 A. 431; McDonald v. Yoder, 80 Kan. 25, 101 P. 468. Another rule is that one who drives an automobile along a public highway in the dark must drive at such a speed that it can be stopped within the distance that can be seen ahead of it, i. e., within the range of its headlights. Holsaple v. Superintendents of Poor of Menominee County, 232 Mich. 603, 206 N. W. 529; Fisher v. O'Brien, 99 Kan. 621, 162 P. 317, L. R. A. 1917F, 610.

Section 71 of No. 70, Acts of 1925, provides that during the period from thirty minutes after sunset to thirty minutes before sunrise every motor vehicle, except a motorcycle, while in motion on a public highway shall display two lighted lamps on the front which shall render any substantial object on the ground clearly visible at least one hundred and fifty feet ahead of such vehicle. That the plaintiff was violating this provision of the statute at the time of the collision cannot be successfully questioned. His own testimony is that the headlights of his car would show objects in the road about thirty feet ahead. He argues, however, that, since he was confronted with a sudden emergency, he could only give an estimate as to how far his headlights would show ahead, and he refers to the...