Towne v. Rizzico.

• Decision Date: 04 May 1943
• Docket Number: No. 1018.,1018.
• Citation: 32 A.2d 129
• Court: Vermont Supreme Court
• Parties: TOWNE v. RIZZICO.

32 A.2d 129

TOWNE

v.RIZZICO.

No. 1018.

Supreme Court of Vermont.

May 4, 1943.

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

Action by Max Towne against Francis Rizzico in tort for negligence for injuries sustained when a sanding machine operated by the plaintiff was struck by the defendant's automobile. Judgment for the plaintiff, and the defendant brings exceptions.

Judgment affirmed on condition of amendment of declaration to conform to theory on which case was tried.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Lawrence & O'Brien, of Rutland, for plaintiff.

Stafford, Abatiell & Stafford, of Rutland, for defendant.

BUTTLES, Justice.

On December 23, 1941, the plaintiff while in the employ of R. D. Barker was engaged in sanding the main highway leading south from the City of Rutland. The equipment used for this work consisted of a Ford truck to the rear of which there was attached a sander or sand spreading machine which was operated by a separate motor. Three men operated the rig. One drove the truck, another kept sand moving from the truck into the sander, and the third, this plaintiff, operated the sander. In order to do so he stood upon a platform, sixteen or eighteen inches from the ground, at the back of the sander, facing toward the front of the truck. When they went south sand was distributed over the westerly half of the road and returning north it was distributed over the easterly half. On the return trip to Rutland at about 5:30 P. M., after dark, the sanding machine was struck from the rear by an automobile driven by the defendant, and the plaintiff was injured. Trial of this action in tort for negligence resulted in a verdict and judgment for the plaintiff.

The defendant comes to this Court on exceptions, one of which was to the denial of its motion, seasonably made, for a directed verdict. The only ground alleged was failure to show negligence on the part of the defendant. We have many times said that in passing upon a defendant's motion for a directed verdict the evidence must be taken in the light most favorable to the plaintiff. Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145, and cases cited. The defendant seems to have lost sight of this rule since in his brief he has stated as facts certain essential matters which are supported only by evidence most favorable to himself and are denied by other evidence. From the evidence considered in accordance with the above rule it was open to the jury to find the following facts. At the time of the accident the truck and sander were moving slowly northward on the easterly side of the road. The tail light on the truck and a red lantern on the sander were both lighted and both were visible from the rear. The highway southerly from the place of accident is straight and level. Vision of the road in that direction is unobstructed for 1,000 feet. At the time of the accident the plaintiff was standing on the platform at the rear of the sander with his back towards the approaching car and he did not see that car before being hit by it. The defendant was driving at about 25 or 30 miles per hour. His headlights were on but he had dimmed them upon meeting another car shortly before the accident and thereafter kept them on dim. He testified that he could then see about 30 or 35 feet ahead and that he did not see the truck until he was within 20 or 25 feet of it. He further testified that under the conditions then existing he could have stopped his car within a distance of about 75 feet.

We take judicial notice that the time at which this accident happened was more than thirty minutes after sunset. The evidence above referred to clearly tended to indicate a violation of P.L. 5115 and 5119, requiring the defendant to have headlamps lighted at that time which would, while the vehicle was in motion, render any substantial object on the ground clearly visible at least 150 feet ahead of it. Furthermore, it was his duty to drive at such speed that the car could be stopped within the distance that could be seen ahead of it. Steele v. Fuller, 104 Vt. 303, 309, 158 A. 666; Palmer v. Marceille, 106 Vt. 500, 508, 175 A. 31. 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 diligence to avoid inflicting injuries on such persons or property. Steele v. Fuller, supra, page 309 of 104 Vt., 158 A. 666. It is apparent that the jury could properly have found the defendant negligent by reason of his failure to maintain the lookout that the law requires, to drive at such speed that the car could be stopped within the range of vision afforded by the headlights, or to have lights which complied with the statutory requirement.

The defendant has briefed two exceptions to the exclusion of evidence. The first of these is to the court's refusal to allow him to inquire of the plaintiff in cross examination whether he had received compensation for his injuries. The defendant's brief treats the question that was asked as referring to workmen's compensation under the statute, so it is sufficient to say that a similar question had already been answered without objection by the same witness on cross examination. Later in the trial it was conceded that the plaintiff had received such compensation and the receipt thereof became the basis of the defendant's motion to dismiss which we hereinafter discuss. Obviously the error, if any, was harmless.

The other exception is directed to the exclusion of the question, asked of the plaintiff on cross examination, whether another truck or vehicle almost hit “your truck”, there at the place of the accident just before this accident happened. The evidence was offered in connection with the question whether the plaintiff exercised due care for his own safety, and it is now contended that the answer to this question would have indicated that he had been warned by a previous narrow escape that he was in a place of danger and should then have taken precautions which he did not take for his own safety. If this evidence had any probative value it may well have been rejected by the court, in its discretion, as being of too slight significance. Aldrich v. B. & M. Railroad, 91 Vt. 379, 384, 100 A. 765. No improper curtailment of the right of cross examination appears.

The defendant excepted to the denial of his motion to dismiss the action made early in the course of the trial and...