Wentworth v. Town of Waterbury

• Decision Date: 18 January 1916
• Citation: 90 Vt. 60,96 A. 334
• Court: Vermont Supreme Court
• Parties: WENTWORTH v. TOWN OF WATERBURY.

96 A. 334

90 Vt. 60

WENTWORTH

v. TOWN OF WATERBURY.

Supreme Court of Vermont. Caledonia.

Jan. 18, 1916.

Exceptions from Caledonia County Court; Willard W. Miles, Judge.

Action by John Wentworth against the Town of Waterbury. Judgment for plaintiff, and defendant excepts. Judgment reversed, and judgment rendered for the defendant to recover its costs.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Simonds, Searles & Graves, of St. Johnsbury, for plaintiff. G. H. Dale and Charles B. Adams, both of Waterbury, and Alexander Dunnett, of St. Johnsbury, for defendant.

HASELTON, J. On Sunday, October 11, 1915, in the early evening, the plaintiff, his wife, and a young woman, and one Gibson, were riding in an automobile. Gibson was the driver. At a culvert in the town of Waterbury the automobile went over and down an embankment, and the plaintiff was injured. Suit was brought against the town on the ground that the culvert was insufficient, and that the accident was due to such insufficiency. Trial by jury was had, with the result that verdict and judgment were for the plaintiff. The defendant excepted. The defendant at the close of the plaintiff's evidence, and of all the evidence, moved for the direction of a verdict in its favor on various grounds, among which was, in substance, this: That on all the evidence, viewed in the light most favorable to the plaintiff, the driver of the vehicle was guilty of negligence which contributed to the accident, and that, as matter of law, such negligence was attributable to the plaintiff.

As the automobile approached a culvert where there was some change in the course of the road, a horse and wagon were standing diagonally across the road between the rails on the embankment over the culvert. The testimony, viewed in the light most favorable to the plaintiff, tended to show that the rear wheels of the wagon were three or four feet from the railing on the easterly side; that the horse's head was nearer than that to the railing on the westerly side; that the driver of the automobile first saw the horse and wagon when he was about fifteen feet therefrom; that he then applied the brakes and turned to the left, where there was more, though insufficient, room, and brought the car practically to a standstill opposite the team, when the car slipped against the guard rail, which gave way In consequence of insufficiency, so that the car and its occupants, including the plaintiff, were precipitated down the embankment, and the plaintiff received the injuries complained of.

The driver was guilty of contributory negligence, as matter of law, for the physical facts shown by the exhibits, and the testimony most favorable to the plaintiff, make it entirely clear that, if he had used his senses to a reasonable degree, and driven with due care, he could and should and would have seen so far ahead that the accident would have been avoided. Harrington v. Rutland R. Co., 89 Vt. 112, 119, 94 Atl. 431; Labelle v. C. V. Ry. Co., 87 Vt. 87, 88 Atl. 517.

It was the statutory duty of the operator of the car, when approaching the curve in the road, to have the vehicle under perfect control. Acts 1912, No. 141. And here he had notice of the turn or curve before he reached it; for, as he testifies, he noticed that his headlights were shining, not onto the road, but into bushes beside the road, and this, by an Invariable law of nature, was notice of a curve in the road. Automobile cases in point are Knoxville & Co. v. Vangilder, 178 S. W. 1117; Tenor and Brommer v. Pennsylvania R. Co., 179 Fed. 577, 103 C. C. A. 135, 29 L. R. A. (N. S.) 924.

Was the negligence of the driver imputable to the plaintiff? Were we to follow what is said in Carlisle v. Sheldon, 38 Vt. 440, which adopts the reasoning of Thorogood v. Bryan. 8 C. B. 115, we should be obliged to hold that the passenger in a vehicle, whether public or private, is so identified with the driver, by virtue of that association merely, that the negligence of the driver is imputable to the passenger. But the unsoundness of the reasoning in those cases has been demonstrated over and over again. It is sufficient here to refer to Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652.

We now consider the question of whether the plaintiff and the driver were so associated in the execution of a common purpose and undertaking as to make each the agent of the other and to make the negligence of one attributable to the other.

Mr. Gibson testified that an automobile party consisting of four, Mrs. Wentworth and a Miss Griffin, Mr. Wentworth, and himself, started from Fayston in the afternoon of Sunday, October 11, 1914, and went to Burlington for a ride, that they went for the purpose of showing Lake Champlain to Mrs. Wentworth and Miss Griffin; that they drove to the water front, drove around for a short time, and then started back over the road they had gone over; and that the accident in question took place...