Stefan Eisler v. Charles Wilder

• Decision Date: 07 January 1936
• Citation: 182 A. 204,108 Vt. 37
• Parties: STEFAN EISLER v. CHARLES WILDER ET AL
• Court: Vermont Supreme Court

182 A. 204

108 Vt. 37

STEFAN EISLER v. CHARLES WILDER ET AL

Supreme Court of Vermont

January 7, 1936

Special Term at Rutland, November, 1935.

Failure to Challenge Right to Maintain Tort Action against Master and Servant Jointly---Automobiles---P. L. 5110, Subd. XI, Care Required and Backing and Turning---Evidence Insufficient to Establish Contributory Negligence as Matter of Law---Jury Question as to Satisfaction by Plaintiff of Prudent Man Rule.

1. Though in tort actions where the wrongful act was committed by servant alone, and master did not participate in it or adopt it, the liability of the master and servant is several and not joint, and a joint action cannot be maintained against them, Supreme Court will not consider that question in action against master and servant where neither defendant challenges right of plaintiff to maintain the action.

2. The due and reasonable care required of a person turning or backing a vehicle in a public highway under the provisions of P. L. 5110, subd. XI, is the care of a prudent man in like circumstances.

3. One backing motor vehicle across street has duty, under provisions of P. L. 5110, subd. XI, of looking for approaching vehicles before he begins to back, and of continuing to look and listen while backing.

4. Operator of motor vehicle approaching along street, across which another vehicle is starting to back, has right to assume that driver of second vehicle will exercise degree of care in backing imposed upon him by statute until in the exercise of the care of a prudent man he sees or ought to see that the assumption is unwarranted.

5. In action for negligence arising out of automobile accident where defendant started to back truck across street when plaintiff proceeding along street on his right-hand side at a speed of fifteen to eighteen miles per hour, was about fifty feet from truck, and where plaintiff sounded his horn continuously from the time he saw the truck start to back up to the time of the collision, lowered his speed to four to six miles per hour, and, when he saw the truck backing toward him, swerved his car to the left, held jury question whether plaintiff acted in light of all attending circumstances as a careful and prudent man would reasonably act in like circumstances, and defendant's motion for directed verdict on ground of contributory negligence was properly denied.

ACTION OF TORT for negligence to recover damages resulting from automobile accident. Plea, general issue. Trial by jury in Rutland municipal court, William H. Botsford, Municipal Judge, presiding. Defendant's motion for directed verdict at close of evidence denied. Verdict and judgment for plaintiff against both defendants. The defendants excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Crowley and Smith for the defendants.

Vernon J. Loveland for the plaintiff.

Present POWERS, C. J., MOULTON, THOMPSON, and SHERBURNE, JJ., and BUTTLES, Supr. J.

OPINION

THOMPSON

This is an action of tort in which the plaintiff seeks to recover for damage done to his automobile when it collided with a truck owned by defendant Wilder and operated by defendant Hughes, his servant, and which collision he alleges was caused by the negligence of defendant Hughes in the operation of the truck. There was a trial by jury and a verdict and judgment for the plaintiff against both defendants. The defendants excepted.

In the recent case of Raymond v. Capobianco, 107 Vt. 295, 178 A. 896, this Court held that in tort actions where the wrongful act was committed by the servant alone and the master did not participate in it or adopt it, the master is liable only under the doctrine of respondeat superior; that under such circumstances the liability of the master and servant is several and not joint and that a joint action cannot be maintained against them. However, as neither of the defendants have challenged the right of the plaintiff to maintain this action, we do not consider that question.

The only exception briefed by the defendants is to the denial of their motion for a directed verdict made at the close of all the evidence. The ground of the motion is "that the evidence viewed in the light most favorable to the plaintiff, and relying solely upon the testimony of the plaintiff, the court should find that the plaintiff is not free from contributory negligence, and therefore a verdict should be directed for the defendants."

Baxter Street in the city of Rutland runs north and south, and at its southerly end intersects with State Street. The collision occurred on Baxter Street about two hundred feet northerly of the intersection, about six o'clock p.m., February 11, 1935. Northerly of the intersection, Baxter Street is straight and practically level for one-fourth mile. At the time of the accident, its traveled portion was about twenty feet wide. The day was very cold, it was dark, and the street was very icy.

The following facts appear from the testimony of defendant Hughes. He was attempting to back the truck, which was fifteen feet long, from the westerly side of Baxter Street across the street into the driveway of a Mr. Morgan on the easterly side of the street for the purpose of delivering a load of wood. He turned into Baxter Street from State Street. He then went to Robbins Street and turned around and came back on the westerly side of Baxter Street and parked the truck there, heading south, "about...