Taylor v. Mayhew

• Decision Date: 02 November 1937
• Docket Number: No. 273a.,273a.
• Citation: 195 A. 249
• Parties: TAYLOR v. MAYHEW.
• Court: Vermont Supreme Court

195 A. 249

TAYLOR

v. MAYHEW.

No. 273a.

Supreme Court of Vermont. Caledonia.

Nov. 2, 1937.

Exceptions from Caledonia County Court; Walter H. Cleary, Judge.

Action by Fred E. Taylor against Charles Mayhew. Judgment for defendant, and plaintiff brings exceptions.

Affirmed.

Argued before SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ., and SHERMAN, Superior Judge.

Conant & Parker, of St. Johnsbury, for plaintiff. Porter, Witters & Longmoore, of St Johnsbury, for defendant.

Buttles, Justice.

In this action of tort the plaintiff seeks to recover damages for personal injuries alleged to have been suffered as a result of being struck by defendant's automobile while plaintiff was a pedestrian on the concrete Memorial drive, so-called, between St. Johnsbury and St. Johnsbury Center on October 31, 1935, at about 1:15 p. m. The weather was clear. The defendant was driving his Chevrolet automobile southerly on the westerly side of the highway at a speed not shown to have exceeded 30 miles per hour. With him were three passengers. The plaintiff was walking southerly on the easterly side of the road in the grass, 2 to 4 feet from the concrete. While the plaintiff and defendant were still some distance apart, a truck driven by one Prescott and owned by Knowlton, who was also the plaintiff's employer, came from the south and met and passed the plaintiff, still on the easterly side of the road. Very soon after the truck had passed him the plaintiff turned sharply and started to cross the road almost at right angles to the direction thereof. As he reached a point on the concrete—whether just short of or beyond the middle is in dispute—plaintiff was struck by defendant's automobile and severely injured. The condition of defendant's car and the testimony of witnesses indicate that the right side of the front of the car came in contact with the plaintiff. Plaintiff testified that he had not crossed the center of the highway when he was struck. Defendant's evidence tended to show that plaintiff was near the middle of the west slab of cement when hit. Plaintiff testified that the Prescott truck was two or three cement blocks away when he started across, each block being some 45 feet long, while defendant's witnesses testified that plaintiff started to run across directly in rear of the truck, one witness placing him as near as 2 feet. Defendant and his witnesses testified that, when plaintiff came into view from behind the truck, he was so close to defendant's car that the latter could not avoid running him down, and he swung his car sharply to the left in an endeavor to do so, which brought his left front wheel some 2 or 3 feet easterly of the middle line of the road at the time of the impact.

Trial in county court was by jury with verdict and judgment for the defendant, and the case comes here on plaintiff's exceptions.

Plaintiff excepted to that portion of the court's charge wherein it is said following the language of Howley v. Kantor, 105 Vt. 128, 131, 163 A. 628: "There was no regular crossing at the point where the accident happened and so a pedestrian attempting to cross there was required to exercise greater vigilance than if he had been crossing at a regular crossing. * * * At regular crossings, where pedestrians usually cross, the driver of a motor vehicle is required to be more vigilant in keeping a lookout for foot travelers than at points where there are no regular crossings. Where the vigilance of the driver is somewhat relaxed the vigilance and watchfulness required of the foot traveler is correspondingly increased. This is due care under the circumstances."

Plaintiff does not contend that the portion of the charge complained of stated the law incorrectly or that the place where the plaintiff attempted to cross was a regular crossing, but excepts on the ground that it does not appear that there ever were any regular crossings anywhere on this road. He argues that the charge as given was erroneous because it assumed, and allowed the jury to assume, that the plaintiff could have chosen a safer place to cross, viz., a regular crosswalk, and raises a standard of conduct for the plaintiff to observe not justified by either the evidence or the pleadings. We cannot agree with the plaintiff's conclusion, especially as the jury were elsewhere carefully and correctly instructed as to the respective rights and duties of a motorist and a pedestrian. They were told that "the pedestrian and automobile driver have equal and reciprocal rights to the use of the highway—each is bound to use due care. * * * He (the plaintiff) is simply required to exercise for his own safety the measure of care that a prudent man would exercise under the same circumstances. * * * There is but one standard of care to be applied to a person crossing a street or highway, whether the person crosses at a regular crossing or some other place—the care and prudence of a prudent person under the circumstances."

"The charge is not to be construed piecemeal. An instruction claimed to be erroneous must be read in the light of what is elsewhere said upon the subject." In re Moxley's Will, 103 Vt. 100, 114, 152 A. 713, 718. "A charge is not to be tested piecemeal, but as a whole, and if, when so considered, it 'breathes the true spirit and doctrine of the law,' it will be sustained, unless we are convinced that the jury was misled." Flanders v. Newport Trucking Co., 102 Vt. 437, 438, 150 A. 128; Cummings v. Conn. Gen. Life Ins. Co. 101 Vt. 73, 93, 142 A. 82; Landry v. Hubert, 100 Vt. 268, 279, 137 A. 97; Mt. Ida School Inc. v. Gilman et al., 97 Vt. 331, 335, 123 A. 198; Clark's Adm'r v. Wilmington Sav. Bank, 89 Vt. 6, 10, 93 A. 265. This exception is not sustained.

The second exception upon which the plaintiff relies is to the refusal of the trial court to set aside the...