Wilford v. Salvucci, 381

• Decision Date: 03 February 1953
• Docket Number: No. 381,381
• Citation: 95 A.2d 37,117 Vt. 495
• Parties: WILFORD v. SALVUCCI.
• Court: Vermont Supreme Court

Page 37

95 A.2d 37

117 Vt. 495

WILFORD v. SALVUCCI.

No. 381.

Supreme Court of Vermont.

Feb. 3, 1953.

Leary & Leddy, Burlington, for plaintiff.

McNamara & Larrow, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

CLEARY, Justice.

This is an action of tort for negligence. Trial was by jury with a verdict for the plaintiff. The case is here on the defendant's exceptions to the overruling of his motions for a directed verdict and for judgment notwithstanding the verdict; also on the plaintiff's exceptions to the overruling of her motion to set aside the verdict as to damages only, for a new trial on the issue of damages only and to the admission of evidence. The cause was passed to this Court before final judgment under the provisions of V.S. 47, § 2124.

At the time of the alleged accident the plaintiff and her husband owned the property where they resided on Airport Drive in South Burlington. Two sets of low-hanging electric wires ran aross their driveway to their buildings. The defendant had a right of entry over the plaintiff's premises, but that did not include the right to interfere with the electric power wires, one of which was about 7 feet and another 5 1/2 feet above the ground. At about dusk on August 9, 1951, the plaintiff saw the defendant's gasoline truck, driven by one of his employees, start up her driveway. She knew the truck would not get underneath the electric wires, so she ran out of her house into the middle of the driveway in an endeavor, by motioning with her arms and by yelling and hollering at the truck driver, to stop the truck from coming up the driveway, explaining to him that the wires were too low, that he would break them. The truck was going about five miles per hour and did not change its speed at any time. As it came toward her she kept backing up, motioning for it to go back. She backed up about ten feet in this fashion. She thought the driver would stop. When she saw he was not going to stop the truck and when it was about a foot and a half from her she stepped off the driveway hollering at him through the open window of the cab, trying to explain to him. As it went by her she was about three inches, four inches at the most, from the body of the truck and something at the edge of the truck hit her inside her right thigh, threw her off balance, knocked her down and she landed on her back. The truck kept on, caught and broke the wires and caused the pole to fall. At the time of the accident the plaintiff's child and grandchild, three and four years old, were playing on the lawn. When asked her purpose in trying to stop the truck from coming up the driveway, the plaintiff testified 'if it broke those wires and the babies had gone up, one of them, and picked up one of those wires, they would have been electrocuted.'

The defendant's motions for a verdict and for judgment notwithstanding the verdict are on the ground that the plaintiff was clearly guilty of contributory negligence as a matter of law. We shall consider the two motions together. In considering them the evidence must be taken in the light most favorable to the plaintiff. Hill v. Stringer, 116 Vt. 296, 299, 75 A.2d 657; McLaughlin v. Getman, 117 Vt. 25, 26, 83 A.2d 513. The defendant claims that the case is squarely within the rule laid down by this Court in Rush v. Cody, 107 Vt. 326, 178 A. 891. The facts in that case were so different from the facts here that the two cases are clearly distinguishable. In that case the plaintiff was working in the highway. He knew that the truck was approaching, knew that the driver was not competent and previously on that same day the plaintiff had been nearly hit by the same truck, yet he continued to work with his back to the truck. When he faced about and threw up his hand as a signal for the truck to stop so he could get on, the fender brushed him and he was knocked down. Here the plaintiff was constantly on the lookout attempting to warn the driver to stop the truck in an effort to protect her babies. The rule, known as the rescue doctrine, is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own injury, provided the attempt is not recklessly or rashly made. Restatement, Torts, Vol. 2, § 472; 38 Am.Jur. 912; 19 A.L.R. 5; 158 A.L.R. 190; 65 C.J.S., Negligence, § 124, p. 736; and cases there cited. It cannot be said as a matter of law that the present plaintiff failed to exercise for her own safety the measure of care that a prudent person would or might have exercised in the same circumstances. The defendant's motions were properly overruled.

The plaintiff's motion to set aside the verdict as to damages only and for a new trial on damages only was on five grounds: (1) That the jury either misconceived or misconstrued or disregarded the court's charge on damages; (2) That the verdict was contrary to the weight of the evidence to sustain the verdict; (3) That there was no evidence to sustain the verdict; (4) That the verdict was grossly inadequate; (5) That the plaintiff's right of recovery had been established and that the error was only on the extent of her recovery. The first and third grounds present questions of law and the ruling is reviewable here. Mullett v. Milkey, 113 Vt. 42, 44, 29 A.2d 806; Cenate v. Hunter, 115 Vt. 402, 404, 62 A.2d 645; Collins v. Fogg, 110 Vt. 465, 470, 8 A.2d 684. The second and fourth grounds were addressed to the discretion of the trial court and its ruling thereon is reviewable here only when abuse of discretion is made to appear. Goldberg v. Gintoff, 112 Vt. 43, 45, 20 A.2d 114; Dusckiewicz v. Carter, 115 Vt. 122, 126, 52 A.2d 788. If the motion should have been granted on either the first or third ground we need give the other grounds no further attention. Collins v. Fogg, 110 Vt. 465, 470, 8 A.2d 684; Cenate v. Hunter, 115 Vt. 402, 406, 62 A.2d 645.

If the verdict can be justified in any reasonable view of the evidence, considered in the light most favorable to the defendant, the ruling of the court below must stand. Dusckiewicz v. Carter, 115 Vt. 122, 126, 52 A.2d 788; Cenate v. Hunter, 115 Vt. 402, 404, 62 A.2d 645; Russell v. Pilger, 113 Vt. 537, 551, 37 A.2d 403. The plaintiff suffered a lumbar sacral back sprain while at work in 1944 and could not straighten up. She stayed away from work about two weeks. Dr. Maynard, an orthopedic specialist, took X-rays of her lower back and treated her for about two months. She had back pain from that time off and on. She suffered another back sprain while at work in 1947. In July 1951 she was suffering pain in her lower back and legs and consulted Dr. Rust, an orthopedic specialist. He took X-rays of her lumbar sacral region and prescribed a steel brace with leather bindings which she still wore at the time of the trial. On May 2, 1952, four days before the trial, she was examined by Dr. Kuhlmann, an orthopedic surgeon, at the request of the defendant. He testified that she complained of discomfort and pain in her lower back and legs, that he could find no corroborating evidence, that he did not believe she had pain. The plaintiff returned to her employment in December 1951, has done the same work as before the accident and has worked steadily since except for one or two days. The jury could reasonably gave found that some of the plaintiff's pain...