FARRELL v. GREENE ET AL

Action by Pedestrian Struck by Automobile While Crossing Street — 1. Review of Order Setting Aside Plaintiff's Verdict for Contributory Negligence — 2. Consideration of Evidence Thereon — 3. Entry of Judgment for Defendant Held Proper — 4. Burden of Showing Freedom from Contributory Negligence — 5. Extent of Right to Assume Due Care of Operator — 6. How Long Entitled to Proceed on Assumption — 7. Evidence Held to Show Contributory Negligence — 8. Variation in Requirements of Prudent Man Rule.

1. In negligence action, ruling of trial court granting defendant's motion to set aside plaintiff's verdict on ground that evidence conclusively showed plaintiff was contributorily negligent, was one of law, and not lying in discretion of trial court, was subject to review.

2. On review of ruling of trial court granting defendant's motion to set aside plaintiff's verdict on ground that evidence conclusively showed plaintiff was contributorily negligent, evidence must be taken in most favorable light for plaintiff, since in this respect motion is same in nature and substance as motion for directed verdict.

3. If trial court was right in holding evidence showed conclusively that plaintiff was contributorily negligent, as claimed by defendant in support of his motion to set aside verdict for plaintiff in negligence action, entry of judgment for defendant was without error.

4. In action to recover for personal injuries received by pedestrian, who was struck by automobile while crossing street, burden was upon plaintiff to show her freedom from contributory negligence.

5. Pedestrian crossing road had right to assume that operator of automobile she saw approaching would not drive in negligent manner, but could not for that reason omit any care which law required of her, since rule permitting such assumption applies only in favor of one whose own conduct measures up to standard of due care.

6. Pedestrian crossing road was entitled to proceed upon assumption that operator of automobile she saw approaching would not drive in negligent manner only until, in exercise of reasonable care, she saw, or ought to have seen, that such assumption was unwarranted.

7. In action to recover for personal injuries received in automobile accident, where plaintiff's undisputed testimony was that she saw lights of defendant's car 500 to 600 feet away, started walking across street, looking at his lights, observed that car was approaching at constant speed and was about 300 feet away when she was half way across street, and considered herself in no danger until car was 10 to 15 feet away, when it was too late to escape, and where she was struck just as she stepped off the paved surface, held that action of trial court in granting motion to set aside verdict for plaintiff on ground that evidence conclusively showed contributory negligence on part of plaintiff was without error.

8. The practical requirements of the prudent man vary with the circumstances, so that what is prudence in one case may be negligence in another, and downright foolhardiness in another.

MOULTON, C.J.

While crossing the street in front of her home Bernice Farrell, a school girl of fifteen years of age, was struck and injured by an automobile owned by the defendant Pease and driven by the defendant Greene. A verdict in her favor was obtained against Greene, the action having previously been discontinued against the other defendant. Upon motion on behalf of Greene this verdict was set aside as a matter of law, and judgment rendered for Greene to recover his costs. The cause is here upon exceptions by the plaintiff.

There is no claim that the defendant was not negligent; in fact, it is conceded that he was in that he was driving at an excessive speed, which the evidence amply tended to show.

The ground of the motion is that the evidence conclusively showed that the plaintiff was contributorily negligent. Therefore the ruling, being one of law and not lying in the discretion of the trial court, is subject to review. French v. Wheldon, 91 Vt. 64, 68, 99 A. 232.

The evidence must be taken in the most favorable light for the plaintiff, since in this respect the motion is the same in nature and substance as a motion for a directed verdict. Belock et al. v. State Mut. Fire Ins. Co., 106 Vt. 435, 440, 175 A. 19, and cases cited; Spaulding v. Mut. Life Ins. Co., 94 Vt. 42, 57, 109 A. 22; Wellman v. Wales, 98 Vt. 437, 438, 129 A. 317. And if the trial court was right in holding that the effect of the evidence was as the defendant claimed it to be, the entry of judgment in his favor was without error. Tarbell v. Grand Trunk Ry. Co., 94 Vt. 449, 451, 111 A. 567.

The testimony bearing upon the issue of contributory negligence was largely that of the plaintiff herself and was undisputed. Her home was on the east side of the street which ran approximately north and south and was of macadam construction, 21 feet wide in the paved surface, with gravel shoulders of some 2 or 3 feet in width on each side. A little after five o'clock on a late November afternoon she alighted from a southbound bus directly across the street from her home. It was dark. She stood by the side of the road until the bus had proceeded about 50 feet on its way, and, looking to the north, saw nothing; she looked to the south and saw the lights of the defendant's car, then, as she estimated, some 500 to 600 feet away. She started across the street, walking at a moderate pace, which she did not vary, looking all the time at the lights of the approaching automobile. She observed that it was proceeding toward her at a constant speed. When she was half way across, it was opposite a building about 300 feet away. She considered herself in no danger until she approached the easterly side of the street, when the car was, as she estimated, 10 to 15 feet away from her, and it was then too late to escape. She was struck just as she stepped off the paved surface.

The burden was upon the plaintiff to show her freedom from contributory negligence. Parro v. Meagher, 108 Vt. 182, 188, 184 A. 885; Palmer v. Marceille, 106 Vt. 500, 501, 175 A. 31, and cases cited. She had the right to assume that the defendant would not drive in a negligent manner, but she could not for that reason omit any care which the law required of her, as the rule applies only in favor of one whose own conduct measures up to the standard of due care. Parro v. Meagher, supra; Eagan v. Douglas, 107 Vt. 10, 17, 175 A. 222; Rush v. Cody, 107 Vt. 326, 330, 178 A. 891; Steele v. Fuller, 104 Vt. 303, 308, 158 A. 666. In any event she was entitled to proceed upon this assumption only until, in the exercise of reasonable care, she saw or ought to have seen that it was unwarranted. Eisler v. Wilder, 108 Vt. 37, 41, 182 A. 204; Mooney v. McCarthy, 107 Vt. 425, 430, 181 A. 117.

It is incredible that, had she used such ordinary prudence as a person of her age is bound to exercise (Eagan v. Douglas, supra; Johnson's Admr. v. Rutland R.R. Co., 93 Vt. 132, 137, 106 A. 682), as she walked across the street with her eyes constantly upon the lights of the defendant's car, she should not have appreciated its rapid approach and have realized that a reasonable regard for her safety required her either to accelerate her pace or to retreat from her position. A little haste in advancing or a retracing of her steps would have given her escape. Instead of taking one of these obvious precautions, she pursued her unhurried way directly into the path of the oncoming automobile with full knowledge of its unabated speed. There is no claim that she was confronted by a sudden emergency, into which she had been thrown without her fault, which confused her mind and clouded her judgment. Her conduct, up to the time that the collision became imminent, was deliberate and voluntary.

It is hardly necessary to point out that the decisions upon which the plaintiff heavily leans (Aiken v. Metcalf, 90 Vt. 196, 97 A. 669; Dervin v. Frenier, 91 Vt. 398, 100 A. 760; MacDonald v. Orton, 99 Vt. 425, 134 A. 599; Parker v. Smith, 100 Vt. 130, 135 A. 495; Porter v. Fleming, 104 Vt. 76, 156 A. 903; Howley v. Kantor, 105 Vt. 128, 163 A. 628) are factually distinguishable from the case before us. In the cases just cited, there was evidence tending to show that the plaintiff was unaware of the situation, and it was held that he was not bound to use constant vigilance in looking out for it, being entitled to assume that the defendant would obey the law. Here the plaintiff kept constant watch and, at the very least, ought to have known her danger. We do not say that, as a matter of law, she was negligent in starting to cross the street, for it is not necessary to decide that question. Her negligence, so far as material here, consisted in her continued progress in the manner and under the circumstances which have been made to appear.

The practical requirements of the prudent man rule vary with the circumstances. "What is prudence in one case, may be negligence in another, and downright foolhardiness in another." Aiken v. Metcalf, supra, at p. 199, 97 Atl. at page 670. The law must be applied to each controversy as may be warranted by the facts.

There was no error in the ruling below.

Judgment affirmed.