177 A. 309 | Vt. | 1935
This is an action brought under the provisions of P.L. 5113, to recover for personal injuries alleged to have been sustained by the plaintiff, riding as an invited guest in the automobile operated by the defendant, through the gross negligence of the latter. The verdict and judgment below were for the plaintiff and the cause is before us on the defendant's exceptions. After an opinion had been prepared and handed down, the defendant moved for a reargument. The motion was *195 granted and the issues involved were again presented upon briefs and oral argument. The following opinion embodies the views of the Court.
The parties left the village of Northfield Falls at 7.30 to 8.00 P.M. on May 30, 1932, to attend a dance at Woodbury Pond. They made a brief stop in Barre, and arrived at the scene of the festivities at 8.45 to 9.00 P.M. They left for home sometime between 12.30 and 1.00 P.M. and had proceeded several miles when the defendant who, by his own testimony, was driving at a speed of 40 to 50 miles an hour, fell asleep, and, as a result, the car left the road, plunged down the bank and collided with a tree. The road curved at the place and the automobile went straight ahead. Both parties received injuries. The defendant testified that he fell asleep suddenly and without warning; that he had not felt sleep coming on before the instant of the accident; that he felt perfectly normal, and that normally he felt the approach of sleep before it came upon him. He also testified that during the stop at Barre he obtained a bottle containing 1 1/2 pints of red sour wine which was intoxicating; that he and the plaintiff drank from it on the way, finishing the bottle at Woodbury shortly before the dance, between 8.30 and 9.00 P.M., and drank nothing thereafter. According to his testimony, the wine produced no feeling of exhilaration or drowsiness. The plaintiff denied all knowledge of the wine and that she drank any intoxicating liquor. She said that she did not know that the defendant had been drinking; that to her knowledge he showed no effects of liquor; she smelled no odor upon his breath, and observed nothing strange in his talk, his walk, or his dancing. He was driving at a high rate of speed, but she made no complaint. She was, she said, always in his immediate presence during the dance, although she sometimes danced with others, and she did not know where he was during such times. On the way home they talked intermittently. The motorcycle policeman, who arrived at the scene of the accident some half hour after it occurred, testified that he smelled liquor on the defendant's breath, and so did the physician who attended him, and who also said that he was so far under the influence of drink that he fell asleep upon the operating table after his wounds had been sutured, while the lights were fully on. The doctor detected no smell of liquor on the plaintiff. The driver *196 of the ambulance beside whom the defendant rode on the way to the hospital noticed no odor of alcohol upon him.
The principal question briefed by the defendant and raised by a motion for a directed verdict is whether the court was warranted in submitting to the jury the question whether the defendant was guilty of gross negligence. It is needless to repeat here the definition of that term, as given in Shaw v.Moore,
One cannot be held to be negligent for what he does or fails to do in the operation of an automobile after he has involuntarily fallen asleep any more than he could be so held after he had suffered a stroke of paralysis, or epileptic seizure, or had suddenly been stricken blind, because the failure to exercise the requisite degree of care and prudence presupposes that the person sought to be charged is capable of sense perception and judgment. The question is, was he negligent in permitting himself to fall asleep, or in operating the car when he knew, or ought to have known, that sleep might come upon him? Bushnell v. Bushnell,
Our inquiry, however, is whether there was evidence in the instant case tending to show gross negligence. This degree of fault lies between ordinary negligence and reckless or wanton misconduct which are elements comprised within our definition of wilful negligence. Sorrell v. White,
After the accident, he made the required report to the motor vehicle department, and in it he said that he ran into fog, turned out too far on loose gravel, and lost control of his car. When this statement was called to his attention on cross-examination and he was asked why he said nothing about falling asleep, he answered, "Because I didn't put it down, no apparent reason." Upon trial he made no claim that there was fog. He testified that he dozed while waiting at the hospital for the doctor's attention, while the doctor said that he fell asleep after his wound had been sutured, The jury were at liberty to consider these matters in determining how far to credit his story.
It is true that there were also inconsistencies and contradictions in the plaintiff's testimony, but since it was not impossible, it was for the jury to weigh and consider. Robey v.Boston Maine. R.R.,
It is said that sleep does not ordinarily arrive without warning or premonitory symptoms. Bushnell v. Bushnell, supra, page 435 of 131 Atl.; Gower v. Strain, supra; Devlin v. Morse,supra. Normally it did not come unheralded to the defendant, as he admitted. There was sufficient evidence to enable the jury, acting reasonably, to find that he knew, or ought to have known, that it was likely that sleep would come, and that, in these circumstances, his operation of the car was conduct indicating an indifference to the duty owed to the plaintiff as his guest, or an utter forgetfulness of her safety. Anderson v. Olson, supra. The motion for a verdict was properly denied upon this ground. What has been said applied also to several exceptions to the charge, which were based, in one form or another, upon the same proposition. *199
Another ground for the motion for a directed verdict was that if it were claimed that the use of wine caused the defendant to fall asleep, there could be no other reasonable inference than that the plaintiff knew of the defendant's procuring and use of such intoxicating liquor and hence that her conduct in continuing to ride with him constituted contributory negligence. It cannot be said, as a matter of law, that this was so. The evidence did not conclusively show that the plaintiff knew or must have known of the defendant's condition, as in the cases cited by the latter in his brief. Kirmse v. Chicago, etc., R.R. Co.,
A third ground for the motion was that on all the evidence and reasonable inferences therefrom the plaintiff assumed whatever risk attended the operation of the car by the defendant. The exception taken to the ruling of the court upon this point is inadequately briefed, since all that is said regarding it is a statement of the ground, and the fact that the motion was overruled and an exception taken. Dailey v. Town of Ludlow,
During the giving of his testimony, the defendant was asked by plaintiff's counsel whether on June 27, 1932, he was not arraigned in the municipal court upon a complaint charging him with operating an automobile upon the highway in a careless and negligent manner, in that he endangered and jeopardized the safety and lives and property of the public by not having the car under control, thereby causing an accident resulting in personal injuries, upon May 31, 1932. The question was allowed, subject to an exception upon the ground that under the rule stated in Girard
v. Vermont Mutual Fire Ins. Co.,
An exception was taken to an instruction which defined wilful negligence. It is not claimed to be an incorrect statement of the law, but it is said that wilful negligence was not an issue in the case, and that the instruction had a tendency to confuse the jury. But the jury were given distinctly to understand that wilful negligence was not an issue, and were told that the definition was given so that they might better understand the definition of gross negligence which had already been stated. No issue outside the evidence was introduced thereby, and at *201
most it was harmless error. Woodhouse v. Woodhouse,
The jury were instructed that it was not necessary for the plaintiff to introduce evidence directly bearing upon the point of her freedom from contributory negligence, but that it was sufficient, if from a consideration of all the evidence, they were satisfied by a preponderance of the evidence that she had been guilty of no act which was a proximate cause of the accident. An exception was taken on behalf of the defendant, the ground being that the plaintiff had testified to facts bearing upon the subject. Contributory negligence need not be negatived by direct testimony, but the manner and cause of the accident, and the fault producing it may be shown by circumstantial evidence. Cummings, Admr. v. Town of Cambridge,
Another exception was taken to an instruction concerning the defendant's liability, if by drinking wine, he voluntarily placed himself in a condition whereby sleep came upon him. The ground of the exception was the failure to charge in the same connection that if the plaintiff knew of such drinking and continued to ride with the defendant she was guilty of contributory negligence and could not recover. This objection is not briefed, and is therefore waived. Symes v. Fletcher,
All questions raised have been considered.
Judgment affirmed. *202
