Paquin v. St. Johnsbury Trucking Co. , 116 Vt. 466 ( 1951 )

78 A.2d 683 (1951)

PAQUIN
v.
ST. JOHNSBURY TRUCKING CO.

No. 219.

Supreme Court of Vermont.

February 2, 1951.

Graves, Mehlman & Brown, St. Johnsbury, for plaintiff.

McNamara & Larrow, Burlington, for defendant.

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

JEFFORDS, Justice.

This is an action in tort in which the plaintiff seeks to recover damages for personal injuries which he claims were caused by the negligence of the operator of the defendant's motor vehicle. Trial was by jury with a resulting verdict and judgment for the plaintiff. The case is here on the defendant's exceptions. The first of these to be considered is to the denial of the court of its motion for a directed verdict. The only ground here relied upon in support of this claim of error is that the plaintiff failed to establish freedom from contributory negligence, but to the contrary on the evidence he has established that he was contributorily negligent as a matter of law.

The evidence viewed in the light most favorable to the plaintiff, as it must be in considering this motion, is as follows: The plaintiff was the driver of a bus which was travelling northerly on the road from West Burke to Barton. The bus entered a straight stretch of road about 1800 feet in length. When the bus had proceeded some distance along this stretch and at a point about 200 feet from the scene of the accident the plaintiff was bothered by the rays of the setting sun. He had to turn his head and did not look straight ahead until after the accident. He could see about two thirds of his lane of traffic but as to the area directly in front of him he was blinded. He continued to drive the bus, looking out of the right hand corner of the windshield, watching the shoulder of the road to see that he stayed on his side. During this 200 feet the bus was on its own side of the road and was going about 30 miles per hour. When the sun began to bother him the plaintiff let up on the accelerator. He did not notice whether the speed of the bus was reduced any at the time of the collision. He did not see the vehicle with which the bus was in collision. There seemed to be a flash and then a crash.

The defendant's vehicle, hereinafter called a truck, consisted of a tractor and trailer. The trailer was 28 feet long and 8 feet wide. When the bus and defendant's truck were about 500 feet apart, the driver of the latter saw the bus approaching. He recognized its driver and observed that he was shading his eyes and appeared to be looking at the right hand side of the road and not directly at the truck and acted as though he was being bothered by the sun. As the truck approached the bus it was travelling about 45 miles per hour and the driver of the truck gave no warning signal to the driver of the bus.

At the place of the accident the black topped hard surface of the road was 19 feet and 5 inches wide. The center line of the highway was 5 inches wide. The pavement over which the truck had traveled showed a skid mark 34 feet long ending on the west side of the pavement, 7 feet northerly from the outside dual rear wheel of the trailer where it had come to a stop. At its northerly end this mark was about 2 feet and 8 inches from the right hand side of the black top. Two other skid marks taken in connection with each other tended to show that from a point about 13 feet northerly from the point of contact between the two vehicles the truck was bearing to its left.

The rear portion of the tractor, including its left rear wheels, was damaged as was the left front end of the trailer. The damage to the bus was to its left front.

The defendant relies on Steele v. Fuller, 104 Vt. 303, 158 A. 666; Palmer v. Marceille, 106 Vt. 500, 175 A. 31 and Kennedy v. Laramee, 115 Vt. 358, 61 A.2d 547, in support of its claim of contributory negligence. In the first of these cases the plaintiff while blinded by the headlights of an approaching car continued to drive while so blinded and his car struck the defendant's, which was parked on the road. In the Palmer case the plaintiff drove through thick smoke in the daytime and his car collided with a truck standing partly on the surfaced road. In the Kennedy case the plaintiff was blinded by the headlights of an approaching car and then by those of a car following him which reflected in his rear view mirror. He kept driving until too late to avoid crashing into a parked car. In each of these cases this Court held that the plaintiff was guilty of contributory negligence which barred his recovery.

In the latter case 115 Vt. at pages 362, 363, 61 A.2d at page 550, the rule laid down in all three is stated as follows: "The law is well settled that when the operator of a motor vehicle, driving in the night is temporarily blinded by the lights of an approaching car, it is his duty either to stop until his vision is restored, or reduce his speed and have his car under such control that he can stop it immediately; and his failure to do so justifies a charge of negligence. * * * He has no right to drive along in a blinded condition and take a chance on what may be in the road ahead." The rule applies equally to one who drives in the day time while blinded. The Palmer case, supra. The plaintiff claims that the rule does not apply to him as he was not blinded since he was able to see the side of the road. But he could not see ahead and took the chance of what might be in his lane of travel to his north. In the Kennedy case the driver could see the side of the road on his right and glanced there to ascertain the position of his car in reference to the side of the highway. The present plaintiff also comes within the rule. This being so, he was required when blinded to immediately begin to reduce his speed and to continue to do so until he had come to a stop or his vision had cleared. The Kennedy case, supra. All that he did in the way of reducing the speed of his car was to let up on the accelerator and he could not tell whether the speed had been reduced at the time of the collision. This is not such a reduction of speed as is required under the rule. The Palmer case, supra. In fact driving such a short distance as the bus traveled over a straight level road after the plaintiff took his foot off from the accelerator and before the collision, it is doubtful whether the speed was reduced to any appreciable extent. We hold that the plaintiff was negligent.

The plaintiff says that even though he was negligent such negligence does not bar his recovery unless it was the proximate cause, or a part thereof, of the accident. This is so. See Skoll v. Cushman, 111 Vt. 160, 165, 13 A.2d 180; Wright v. Godin, 108 Vt. 23, 25, 182 A. 189, 190; Goodwin v. Gaston, 103 Vt. 357, 363, 154 A. 772; Merrihew's Adm'r v. Goodspeed, 102 Vt. 206, 216, 147 A. 346, 66 A.L.R. 1109; Lachance v. Myers, 98 Vt. 498, 504, 129 A. 172; La Mountain's Adm'x v. Rutland R. R. Co., 93 Vt. 21, 25, 106 A. 517.

It is said in Wright v. Godin, supra, "The mere fact that the plaintiff was negligent is not, of course, a bar to his recovery. To have such an effect the failure to exercise ordinary care must have contributed to the accident; that is, it must have formed a proximate cause of it. Negligence by itself does not necessarily bring injurious consequences and resulting liability in its train. It may be of such a nature as to be unrelated to the catastrophe."

The test or rule to be applied in determining whether the negligent conduct of a plaintiff contributed to the injury is set forth in Walker v. Westfield, 39 Vt. 246 at pages 252 and 253. This test or rule has not since been changed. That case involved the question of contributory negligence. The court charged the jury, "You will then inquire whether such want of care and prudence contributed to the accident. If you find that it did not, that the accident would have happened the same if such want had not existed, then such a want of care is of no consequence in the case, and will not prevent a recovery." Speaking of this portion of the charge this Court said: "If the latter clause of the premises of this proposition was to be regarded as meaning just what it would mean if it stood alone, we would hold it erroneous, though it finds countenance and example in the language of several of the English and some American judges. It appears to us that a case may, and is likely enough, to occur, in which the want of the requisite care and prudence may have contributed to the accident, and still it would have occurred independently of such want of care and prudence. The test is not, whether it would have occurred independently of such want of care and prudence, but whether such want of care and prudence contributed in any degree, in point of fact, to the happening of the accident. If it did so contribute, the plaintiff cannot recover, for the reason that the court and jury cannot be called on to determine the proportionate effect of the concurring fault of both parties; and hence it must appear from all the evidence, that the fault of the plaintiff did not contribute at all to the happening of the accident.

"In order for the plaintiff to make a case upon which he may safely rest, it is necessary that he should submit a state and character of evidence upon which the jury would be authorized to find affirmatively, both that the defect in the road operated to produce the accident and that no want of care on his part contributed to it. This is what he assumes, and this burden goes with him throughout the case, and, in the end, he must be able to have the jury, upon the whole evidence, find affirmatively the same that was necessary to be established by his opening evidence, at the time he rested upon making his prima facie case."

See also Murphy v. Deane, 101 Mass. 455 for a case wherein a request to charge similar to the one given in the Walker case was held to be unsound and a test in substance the same as that in the latter case was held to be the proper one. The reasons for applying such a test are discussed thoroughly in the opinion. It may be noted that these two cases do not follow what might be termed the general rule as stated in 38 Am Jur. page 898, § 213 as a test in determining whether the conduct of a plaintiff contributed proximately to an injury.

The question is then whether it can be said that the plaintiff here sustained his burden of proving by a preponderance of the evidence that his negligence did not contribute to the accident in the least degree. Bianchi v. Millar, 94 Vt. 378, 382, 111 A. 524. The plaintiff in claiming that his conduct was no part of the proximate cause of the accident stresses the fact that at the time of the collision the jury could have found from the evidence that the bus was on its right side of the road. This is so. The jury also reasonably could have found that at that time the truck was a foot or a little more over the center line. This latter finding could have been based on the testimony of the plaintiff and the skid marks showing that at a point near the place of the collision the rear outside wheel of the truck was 2 feet and 8 inches from the right hand side of the road, taken in connection with the width of the trailer. They could also have so found that a few feet prior to the point of collision the truck was bearing to its left. Thus if the only question that the jury had to decide in determining the question of proximate cause was whether the bus was on its right side of the road at the time of the accident they could have found that its sole proximate cause was the negligence of the defendant's driver in so operating the truck that it crossed over the center line of the road and struck the bus in its lane of traffic where it had the right to be. Such apparently was the situation in the case of Stobie v. Sullivan, 118 Me. 483, 105 A. 714, relied upon by the plaintiff in his brief. But such is not the case here. The purpose of the rule which we have quoted from Kennedy v. Laramee, supra, was to impose on the operator of a motor vehicle when blinded, certain rules of due care to be observed by him. It recognizes that one so blinded could not take certain measures for his safety, and that of others, which could and should be taken otherwise. The negligence of the plaintiff was his failure to obey these rules. He continued to drive along while blinded. What course the bus took from the time he could no longer see ahead until the time of the collision does not appear in the evidence. Whether it maintained a straight course on its side of the road or veered to its left gradually, or sharply, just prior to to the time of collision is not shown, nor could the jury reasonably have drawn inferences from the evidence on this or other matters pertaining to its course. It is apparent that if it veered to its left in such a way that this change of course contributed to the accident such change was a part of the proximate cause of the injury. As we have seen, the burden was on the plaintiff to prove that his negligence did not contribute to the accident in the least degree. The evidence so sustain this burden must have been of such quality and character as to justify the jury, acting reasonably, to predicate a verdict thereon in favor of the plaintiff. State v. Boudreau, 111 Vt. 351, 361, 16 A.2d 262; Wellman, Adm'r. v. Wales, 98 Vt. 437, 448, 129 A. 317. A finding by the jury that no act resulting from the negligence of the plaintiff contributed to the accident must have been based upon speculation and conjecture and conjecture is no proof in him who is bound to make proof. Jacobs v. Clark, 112 Vt. 484, 489, 28 A.2d 369; McKirryher v. Yager, 112 Vt. 336, 341, 24 A.2d 331; Wellman, Adm'r. v. Wales, 97 Vt. 245, 255, 122 A. 659.

The plaintiff relies on a statement appearing in the opinion in Page v. McGovern, 110 Vt. 166, at page 171, 3 A.2d 543, at page 546. This statement is, "Indeed, it appears by no means certain that, had he (plaintiff) stopped, the collision would have been avoided." This statement was made after it had been held that the evidence warranted the jury in finding that the plaintiff was not negligent. Thus it was an obiter statement though warranted by the facts. In that case the plaintiff had sustained his burden of proof. The plaintiff also relies on Odell v. Powers, 284 Mich. 201, 278 N.W. 819, 821. The decision in that case is not in conflict with what we have here held. There as here, there was evidence from which the jury could find that at the time of the accident the plaintiff was on his right side of the road and it did so find. In that case the visibility of the plaintiff was poor for a distance of from 18 to 20 feet due to snow being scattered by a snow plow. The court invoked, in favor of the plaintiff, the rule that he was not bound to anticipate that the defendant would violate the law and operate his automobile on the wrong side of the road. It said that under the facts in the case "the jury might well have found that even had plaintiff brought his car to a complete stop upon entering the cloud of now he would have been struck by defendant, in any event, who was driving on the wrong side of the highway." The important distinguishing feature between that case and the one here is the difference in distance that the two plaintiffs continued to drive after they should have stopped or effectively slowed down.

The plaintiff cites several cases from other jurisdictions holding that negligence does not bar recovery unless it contributes to the injury. From cases previously cited it is shown that this is also our rule. Our leading case on this point is Sowles v. Moore, 65 Vt. 322, 26 A. 629, 21 L.R.A. 723. The holding in that case is in substance that though one is negligent, such negligence is not the cause of the injury in the legal sense of the injury would have occurred just the same if there had been no negligence in the respect claimed. See also Johnson v. Cone, 112 Vt. 459, 465, 466, 28 A.2d 384; Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 380, 381, 177 A. 631, Walker v. Westfield, supra, is not in conflict with this rule. It is cited and quoted from in the Sowles case in support of the rule. The Walker case merely held that the clause in the charge which it said would be erroneous if it stood alone was not the proper test to be applied in determining the question of the contributory negligence of a plaintiff and it stated what that test is. We have the rule but the plaintiff has failed to sustain his burden of making a case which would have warranted the jury in finding that it applied in his favor.

The plaintiff says, in effect, that in any event he was entitled to recover under the doctrine of the last clear chance. This doctrine as set forth in Shea v. Pilette, 108 Vt. 446, at page 456, 189 A. 154, at page 158, 109 A.L.R. 933 is as follows: "The doctrine of the last clear chance presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence has occurred when the defendant could, and the plaintiff could not, by use of the means available avert the accident. In such a case, the negligence of the party creating the situation is remote, and that of the defendant in not averting the accident, after the peril is or should have been discovered, becomes the sole efficient cause of the injury." The pleadings warranted a charge of this doctrine but it was not given as attorneys for neither party on being questioned by the court indicated that they wanted it charged. The defendant now says that the plaintiff waived any reliance on this doctrine. This the plaintiff denies. It is not necessary to determine this question as the plaintiff would not have been helped if the doctrine had been charged. If the bus veered and in such a way and at such a time that the driver of the truck could not avert the accident, then the doctrine would not apply in favor of the plaintiff. The burden was on the plaintiff here, as on the question of proximate cause, to present evidence from which the jury could reasonably find that he was entitled to the benefit of the doctrine. Here again the jury would have been obliged to speculate and conjecture in order to find for the plaintiff and a finding so based could not stand as the support of the verdict for the plaintiff. Bates v. Rutland R. Co., 105 Vt. 394, 404, 165 A. 923. The lower court should have granted the defendant's motion for a directed verdict. In view of this holding there is no need to consider the other exceptions of the defendant.

Judgment reversed, and judgment for the defendant to recover its costs.