Wagner v. Vill. of Waterbury

• Decision Date: 01 February 1938
• Docket Number: No. 1637.,1637.
• Citation: 196 A. 745
• Parties: WAGNER v. VILLAGE OF WATERBURY.
• Court: Vermont Supreme Court

196 A. 745

WAGNER

v. VILLAGE OF WATERBURY.

No. 1637.

Supreme Court of Vermont. Washington.

Feb. 1, 1938.

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

Action by Howard C. Wagner, as administrator of the estate of his deceased son, against the Village of Waterbury for alleged wrongful neglect causing the son's death. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Wilson, Carver, Davis & Keyser, of Barre, for plaintiff, Fred E. Gleason, of Montpelier, for defendant.

BUTTLES, Justice.

The plaintiff, as administrator of the estate of his deceased son, brings suit in tort under the statute against the defendant village for alleged wrongful neglect or default causing the death of plaintiff's intestate. It is alleged that defendant was engaged in the private business of furnishing water to the inhabitants of the village under contracts for payment of certain fixed rates to the village for the use of such water; that it permitted a certain water pipe under Stowe street in the village to become out of repair and to leak, as a result of which water penetrated to the surface of the street, ran out upon the cement pavement and froze, making the same very slippery.

On November 25, 1935, shortly before noon, the plaintiff's intestate, a boy about 6 1/2 years old, was killed while crossing Stowe street on his way home from school by being struck by the automobile of one Haggett when it skidded upon ice, caused and allowed to remain on the street, it is alleged, by reason of the negligence of the defendant village. The case comes here on defendant's exceptions from county court where verdict and judgment were rendered for the plaintiff.

Defendant relies upon various exceptions taken to the overruling of its motion for a directed verdict made at the conclusion of the plaintiff's case and renewed at the conclusion of all the evidence, and it briefs these exceptions under three general heads, as follows: (A) Regardless of an intervening cause, plaintiff failed, as matter of law, to show that any negligence of defendant was a proximate cause of decedent's death; (B) defendant submits that, as a matter of law, the actions and conduct of Haggett constituted an efficient intervening cause, standing between defendant's neglect, if any, and the injury, and thus the claimed neglect of the defendant was rendered and became the remote rather than the proximate cause of the injury; and (C) the plaintiff has failed to show that defendant was guilty of any negligence that contributed in any way to the accident.

It is obvious that (A) and (C) cover somewhat the same ground.

In order to establish negligence on the part of the defendant, it was imperative to show that there was ice upon which Haggett's car skidded at or before the time when the Wagner boy was hit.

There was a 9 per cent. grade in the street down which Haggett was driving his 1930 Ford pick-up truck at a speed which he estimates at 20 to 25 m. p. h. An eyewitness fixes the speed at 30 to 35 m. p. h. The evidence taken in the light most favorable to the plaintiff indicates that Haggett saw three small children about to cross the street from his right to his left. He set his brake at a point about 61 feet from the spot where the Wagner boy was hit, at the same time pulling his car to the left with the intention of going between the two children who had then gotten nearly across the concrete surface of the road, and the Wagner boy who was nearly in the middle of the road. A skid mark on the surface of the concrete indicated that he continued this course to the left for 50 feet and until the skid mark reached a point .9 feet from the left edge of the concrete. Fearing that he would strike the first two children if he continued in that course, he tried to turn his car far enough to the right to avoid them. He testified: "I put on my brakes and the wheels skidded, the marks showed on the cement, one wheel I believe, and I can't remember whether the other did at all, and I skidded down onto the ice, and when I struck the ice the car shot like that and I thought I would take the ditch, but I couldn't because the other two kids were there and I switched around and turned over there on the ice." In cross-examination he was asked: "How long was it after your car struck the little boy before your car tipped over? A. Quick as that" (snapping his fingers). And again: "It struck the child when it bore to the right."

Arthur Cross, who saw the accident from farther down the hill, thus describes it: "Well Mr. Haggett's truck went over on the left and then swung back after he had hit the boy and tipped over on its left side on the ice." And in cross-examination, "Q. Before it struck the boy it got back over onto its right side again, did it not? A. Yes and tipped over. * * *

"Q. Now tell the jury whether the car struck the boy before it started to the right or after. A. Well that is hard to tell. He was coming down through there and trying to —one side of the road to the other — trying to dodge the boy, and he was on the right and on the left, it is kind of hard to tell."

He also testified that in his opinion the boy got no farther across than the middle of the road.

Tests made during the afternoon of the day of the accident by motor vehicle inspectors indicated that the brakes of the Haggett truck were so ineffective that when fully applied only the left rear wheel was checked at all, and that wheel was not fully checked, that is, the brake did not cause it to slide continuously. The inspectors testified that they found a skid mark extending at an angle to the right for 32 feet from about the point where the 50-foot course ended which was not as clear or pronounced as the 50-foot mark. The line indicating this skid mark on Defendants' Exhibit A, as drawn by Inspector Cleveland, is quite irregular. Chief of Police Griffith, who worked with the inspectors during a part or all of the time that observations and tests were made, testified that he could find no track from the end of the 50-foot course over towards the place where the car tipped over, although he looked for such mark, which suggests that the 32-foot mark must have been quite indistinct.

Inspector Marsh testified that the 32-foot mark ended at the place where, he was told, the rear end of the truck had lain, tipped over, facing up the hill at an angle, with the front end of the car in the gutter; so that it would seem that at some time while the rear wheel was making that 32-foot mark the front end had swung around to the right in an arc of about 90 degrees.

The evidence tends to show that the boy was struck by the right front wheel of the Haggett car. Computation of the distance from the rear left to the right front wheel indicates that that distance is exceeded by less than three feet by the distance indicated on the engineer's plan (Plaintiff's Exhibit 3) from the southerly end of the 50-foot mark to the place where the boy was standing when struck. It would seem to follow that when the car was deflected to the right the front end started to come about on the left rear wheel as a pivot, or a partial pivot, until it struck the boy in advancing no more than three feet, and that thereafter the car continued to turn until it had described at least a right angle to its former direction, and that it then tipped over. All this, of course, at the apparent speed of the car, would occur almost instaneously. An inspection of Plaintiff's Exhibit 7 indicates that if the children are correctly placed —the boy with the white shirt in the position of the Wagner boy, six inches to the right of...