(аfter stating the facts as above). This appeal was so ably briefed and argued that the court desires to express to counsel for both sides its appreciation of the assistance rendered by their admirable рresentation of the issues. These relate, in brief, to (1) the court’s refusal to compel the plaintiff to elect against which of the defendants she would proceed; (2) its ruling that the hospital as a charitable institution was not immune from liability for the negligence of its agent, Haynes; (3) its denial of a motion for a directed verdict on the ground of plaintiff’s contributory negligence; (4) alleged errors in portions of the charge to the jury; and (5) certain rulings оn evidence.
The motions of the defendants that the plaintiff be required to elect between them were based upon the theory that master and servant may not be sued jointly in an action of tort founded on negligence of the servant, where the master’s responsibility results solely from the doctrine of respondeat superior and without his personal participation in the servant’s tort. Upon this subject there is a split in the authorities, a minority of the jurisdictions holding as the defendants contend. See 39 C. J. 1314; Parsons v. Winchell, 5 Cush. (Mass.) 592,
The argument that the master will lose his right of indemnity has no compelling force in statеs which permit the joinder. See Southern Ry. Co. v. Carson,
The court’s ruling as to the liability of the hospital also involves a question of local law upon which the authorities are divided. Both parties agree that there is no controlling Vermont decision, so that we must determine for ourselves what rule to apply. Whatever may be thе correct doctrine where the injured plaintiff is a recipient of the bounty of an eleemosynary institution, as, for example, a patient at a hospital (Powers v. Mass. Homœopathic Hospital,
It is true that several courts of high authority have gone to this extreme. Foley v. Wesson Memorial Hospital,
The defendants contend that the court erred in denying their motions for a directed' verdict on the ground of plaintiff’s contributory negligence. The collision occurred when the plaintiff’s car was wholly within the north half of the street; that is, she had turned diagonally to the left into the path of the oncoming ambulance, which was аpproaching at a rapid rate of speed, sounding its loud Klaxon horn, and with nothing to impede her view of it. There is no evidence that she gave any signal of an intention to tum, or that she slackened her speed (estimаted by several witnesses as at least 15 miles an hour) or applied her brakes at any time before the collision. Just before the impact, Haynes turned his wheels toward the right and stepped on the accelerator in an attempt to pass in front of the sedan, but his left front wheel and fender struck her right front wheel and fender. The argument is that these undisputed facts show irrefutably that, however reckless Haynes may have been, the plaintiff’s own negligеnce contributed to the collision which produced her injuries.
Persuasive as this argument appears, counsel for the plaintiff has urged with greater persuasion, to our minds, that her negligence is not so clearly demonstrated as to justify withdrawal of the question from the jury. The ambulance as such was entitled to no special right of way — this the defendants concede — and plaintiff’s conduct is to be judged as though the approaching vehicle had been an ordinary Cadillac automobile. A driver need not wait until the street is absolutely empty of approaching vehicles before turning across it. Unless the contrary is apparent, he may assume that oncoming сars will be driven at a legal rate of speed and with due regard to others in the street. There was ample space for Haynes to pass to the rear of the sedan if he had chosen that course and had aсted in time. According to the most favorable testimony, that of Miss Wells, plaintiff was driving “slowly” and began her tum when her sedan was about opposite the striped pole and when the ambulance was opposite the Wells housе.
As shown by the map and testimony explaining it, these points are 260 feet apart, so that, had Haynes observed the plaintiffs turn at the same time as did this witness, he might have had sufficient time and space to avoid her. When she started tо tum, her left wheels were close to the south trolley track and the ambulance was close to the north track; consequently each car had to move only a short distance to its left to' enable Haynes’ car to pass behind Miss Allen’s. He was then 260 feet away, and the speed at which his car was approaching would be difficult for any driver in her position to have judged. Under these circumstances we do not think the court is required to hold as a rule of law that no prudent driver would have started the tum. Having started it, we cannot conclusively predicate negligence upon its continuance. The time was too short. At 50 miles an hour Haynes would have covered the 226 feet between a point opposite the Wells house and the place of collision in three seconds. Miss Allen in the meantime had moved forward but 34 feet. The jury might have found, if they accepted Miss Wells’ testimony as accurate, that he was traveling more than six times as fast as she. Whether it was negligent to start the turn, whether, having started it, she thereafter omitted any proper precaution or did all that a prudent driver should have dоne, are questions which necessarily turn upon a determination of disputed estimates of speeds and distances. Such questions are for the jury, and carry with them for determination by the same body the question of the plaintiff’s negligеnce. There was no error in denying the motions for a directed verdict.
Having left to the jury the question of contributory negligence, the court charged that if both plaintiff and defendant Haynes were negligent, and if the negligencе of both created the perilous situation in which they were just before the collision, nevertheless, if there was a time just after such negligence occurred when Haynes could have prevented the collision but the рlaintiff could not, then she can recover notwithstanding her negligence which contributed to the perilous situation. No complaint is, or could successful
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ly be, made of the accuracy of this charge (Lachancе v. Myers, 98 Yt. 498,
Further complaint is made of the court’s refusal to give a requested charge to the effect that if the plaintiff turned in front of the ambulance without giving warning, and if Haynes was thus confronted with an emergency without fault on his part, he should not be held to the exercise of the same degree of care as if he had had time for reflection. In denying the request the court stated thаt the- charge already given was more favorable to the defendants than their request and inconsistent with it. The portion of the charge thus referred to told the jury that, unless Haynes was negligent in failing to discover plaintiff’s peril аnd avoid the collision, there could be no recovery on the theory that Haynes had the last chance to avoid it. In other words, the charge required a finding of negligence by Haynes in discovering the emergency, while the request assumed that the emergency arose without fault on his part. Hence the refusal was harmless.
Finally, error is alleged as to testimony of Mrs. Allen regarding plaintiff’s loss of memory concerning the accident. Some of it wаs perhaps objectionable as hearsay, though the objection was not made on that ground. Mrs. Allen could testify to conversations showing plaintiff’s loss of memory; in short, to almost anything probative of such loss, exceрt the bare statement of the plaintiff that she had lost her memory. Most of the testimony was clearly competent, and such of it as was not we cannot regard as prejudicial in any important sense. Another witness had previously testified without objection to plaintiff’s loss of memory.
Judgment affirmed.