This is an action of tort to recover damages to person and property by reason of a collision between an automobile owned and operated by the plaintiff and one operated by the defendant. The accident occurred on Columbian Avenue in the City of Rutland on January 27th, 1950. Trial was by jury. At the close of the plaintiff's evidence, the defendant moved for a directed verdict. The motion was granted and the case is here on the plaintiff's exception thereto.
The only ground of the motion as disclosed by the record is that the plaintiff was guilty of contributory negligence as a matter of law. That question is before us and is raised by the plaintiff's exception to the granting of the defendant's motion.
The burden was on the plaintiff to show freedom from contributory negligence but direct or affirmative proof to the point is not required. Palmer v. Marceille, 106 Vt. 500, 507, 175 A. 31; Appleyard v. Ray Co., 115 Vt. 519, 522, 66 A.2d 10.
In passing upon the motion for a directed verdict the evidence must be taken in the light most favorable to the plaintiff. The effect of modifying evidence is to be excluded. Contradictions and modifying evidence are for the jury to resolve. The tendency of the evidence and not its weight is to be considered. Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145; Hill v. Stringer, 116 Vt. 296, 299, 75 A.2d 657.
With these principles in mind, the jury could have found the following facts: Columbian Avenue runs generally east and west and is U.S. route 4 through Rutland to West Rutland and beyond. The plaintiff was driving his automobile from West Rutland to Rutland. The defendant was the operator of an automobile traveling in the opposite direction. It was about five thirty P.M. and both cars had their lights on. The avenue has a cement surface twenty-four feet wide. The plaintiff entered a sharp left hand curve at a speed of between thirty and thirty-five miles per hour. He was proceeding on his right hand side of the road and near the outside edge of the cement. At that time he saw the auto operated by the defendant approaching at a speed of about thirty miles per hour. It was on the outside of the curve and on the plaintiff's side of the road. The plaintiff turned to his left to give the defendant's car room to go by on his right. The defendant turned to her right. The cars collided with their front ends northerly of the center of the cement and stopped
A railroad with two main tracks runs parallel to the avenue on its southerly side and is 3 to 4 feet below the level of the cement. Near the westerly end of the curve a street turns off the southerly side of the avenue with a railroad crossing on that side street known as Temple crossing. There is a warehouse on the southerly side of the avenue easterly of the place where the accident happened. Its westerly corner is 4 feet from the southerly edge of the cement and about ten feet from that corner there are steps leading into the building. These consist of two steps leading down from the level of the road into the building. It was 24 feet 7½ inches from that corner of the warehouse to the left rear corner of the defendant's car and 36 feet 4 inches to the right rear corner of the plaintiff's car. There is a side track 4 feet southerly of the warehouse and between that and the main line tracks. It extends westerly of the warehouse about fifty feet and during that distance swings towards the avenue. There is a gravel shoulder on the southerly side of the cement which is 18 inches to 2 feet wide opposite where the collision occurred and about 2 feet wide further west. There is a drop of about 5 feet from the shoulder at the west end of the warehouse and then the ground levels off to the railroad tracks. From that drop the ground slopes up until it is even with the road near the Temple crossing. The gravel shoulder rounds down along that slope and the slope gets steeper going easterly from Temple crossing until it ends at the 5 foot drop at the west end of the warehouse.
The plaintiff had traveled this road many times and was familiar with the curve, location of the warehouse, railroad tracks, gravel shoulder and the general surroundings. The cars were each fifty to sixty feet from the place of collision when the plaintiff saw the defendant's car approaching on the plaintiff's side of the road.
The plaintiff testified that "I figured it was best for me to turn to my left to give this car room to go by me." Also when asked if there wasn't an area on his right to which he could have pulled to avoid the accident he replied, "Not without going on the railroad tracks."
The accident was investigated by two police officers who were called to the scene. They made the measurements specifically set forth herein as to the location of the cars after the accident. There was admitted an exhibit made by one of them after their investigation showing the position of the cars, Columbian Avenue and various other objects with the measurements above set forth and others.
The defendant introduced in connection with the testimony of the plaintiff and his witnesses several small pictures of the general location. She says in her brief in support of the claim of contributory negligence by the plaintiff that these show the gravel shoulder wider than set forth above and that there was ample room on the south side of the road for the plaintiff to pass the defendant without an accident occurring and that the physical facts as shown by her exhibits must prevail over the testimony of a witness inconsistent therewith. The trouble with her position is that in addition to the positive testimony as to the width of the gravel shoulder, her pictures and the inferences to be drawn therefrom were not without contradiction and they were somewhat discredited. A disinterested witness who was working in a filling station just easterly of the warehouse and who had worked there for more than a year and was very familiar with the entire location testified for the plaintiff. He heard the crash and went to the scene immediately. He testified about the gravel shoulder, its width, the slope southerly of it, the side track and other things. When shown the pictures on cross examination he still insisted
She also says in this connection that there was ample room on the south side of the road to allow the plaintiff to pass the defendant and without leaving the traveled portion of the road. She calls our attention to the sketch made by the police officer that shows there was 8 feet 4 inches from the defendant's car to the southerly edge of the cement. But this was after the defendant's car had stopped and does not show its position when the plaintiff first saw it fifty feet from that point or show its course while it traveled that fifty feet. Its position after the collision, particularly its angle to the highway plus the plaintiff's testimony that when he first saw the car it was on his side of the road, would justify the inference that, without doubt, it was nearer the southerly side of the road while it was traveling that fifty feet than it was at the time of the collision.
One driving an automobile along a public highway who sees a car approaching on the wrong side of the road has, at the outset, a right to assume that the driver will observe the law of the road and seasonably move over to his right so as to pass without interference. He may proceed on this assumption until he sees or in the exercise of reasonable care ought to see that it is unwarranted. His care and diligence is to be measured in view of this assumption. But he cannot for that reason omit any care the law requires of him. Hatch v. Daniels, 96 Vt. 89, 93, 117 A. 105; Steele v. Fuller, 104 Vt. 303, 308, 158 A. 666; Page v. McGovern, 110 Vt. 166, 171, 3 A.2d 543; Ranney's Adm'r v. St. Johnsbury Trucking Co., 116 Vt. 13, 16, 68 A.2d 697; Hill v. Stringer, 116 Vt. 296, 300, 75 A.2d 657.
The plaintiff says that he was confronted with an emergency and his conduct as to contributory negligence is to be tested by what is called the "emergency rule." In Hatch v. Daniels, supra, 96 Vt. at pages 94-95, 117 A. at page 107, a case involving an automobile accident, this Court stated the rule as follows, omitting citations: "When one is confronted with a sudden peril, as the plaintiff was, he is not held to the exercise of the same degree of care as when he has time for reflection. * * * The law recognizes the fact that a prudent man, so brought face to face with an unexpected danger, may fail to use the best judgment; may omit some precaution he could have taken; may not choose the best available method of meeting the dangers of the situation. * * * When one, without his own fault, but through the negligence of another, is so situated, he is not ordinarily, if ever, chargeable, as matter of law, with contributory negligence, if, in attempting to escape the danger, he makes a mistake in the method adopted." See also Bennett v. Robertson, 107 Vt. 202, 214-215, 177 A. 625, 98 A.L.R. 152; French v. Nelson, 111 Vt. 386, 391, 17 A.2d 323.
It is not necessary to repeat what the evidence disclosed. At the speed the cars were approaching each other, which was not excessive, and when the plaintiff saw the defendant's car on the plaintiff's side of the road he had only about a second "to look out for himself, and to exercise the care of a prudent man, not only to avoid injuring others, but also to protect himself from injury". Hatch v. Daniels, supra, 96 Vt. at page 94, 117 A. at page 107. He chose to turn to the left in an attempt to avoid the other car and allow it to use the plaintiff's side of the road where it then was. The defendant claims that the plaintiff cannot invoke the rule as the emergency was created by the plaintiff's own fault in turning to the left and if he had continued straight along there would have been no accident. It is unfortunate that
One who is put in a perilous position by the negligence of another cannot be regarded as guilty of contributory negligence if he takes such steps to protect himself as a reasonably prudent person might take, even though he might have avoided the injury by the use of better judgment and by taking another course than the one he adopted. Dole v. Lublin, 112 Conn. 603, 153 A. 856. The law appreciates that one who is confronted with a sudden peril, through no fault of his own, may do some things which, after it is all over, may seem to have been improper or even foolish. It gives him a reasonable opportunity to recover from the shock naturally resulting from such a situation and affords him a reasonable opportunity to regain control of himself and his car, before he can be charged with contributory negligence. Beatty v. Dunn, 103 Vt. 340, 343, 154 A. 770; Bennett v. Robertson, 107 Vt. 202, 215, 177 A. 625, 98 A.L.R. 152. The question is, what would or might a prudent man, in the same circumstances, do and this question is for the jury. Hatch v. Daniels, supra, 96 Vt. at page 95, 117 A. 105 and cases cited. Benedict v. Union Agricultural Society, 74 Vt. 91, 100, 52 A. 110; Lee v. Donnelly, 95 Vt. 121, 127, 113 A. 542; Porter v. Fleming, 104 Vt. 76, 81, 156 A. 903.
We have not had called to our attention nor are we aware of any case in this judisdiction in which the precise question here involved has been before this court, namely:— the contributory negligence of one who turns to the left in an attempt to avoid another auto approaching on the wrong side of the road and with which a collision is threatened.
The driver who turns to his left in such a situation and drives beyond and over the center of the highway is guilty of a violation of the law of the road. V.S. 47, § 10,219, Par. I. This is a safety statute and its violation makes a prima facie case of negligence. It gives rise to a rebuttable presumption, rather than a conclusive presumption, of negligence and proof of attendant circumstances may, in a civil case, counter-balance or overcome the effect of the statute. Appleyard v. Ray Co., supra, 115 Vt. at page 522, 66 A.2d 10 and cases cited.
According to the general rule it is not necessarily negligence for the driver of an automobile to turn to the left in meeting and passing a car coming from the opposite direction in an attempt to avoid such car coming on the wrong side, with which a collision is threatened; the question whether negligence exists depends upon the facts and circumstances of the particular case. 5 Am.Jur. Automobiles, § 322.
We quote with approval from an annotation in 113 A.L.R. 1330, "A traveler is not necessarily guilty of negligence, as a matter of law, because he turns to the left in violation of the law of the road, in an attempt to avoid a vehicle approaching from the opposite direction on the wrong side, with which a collision is threatened, but whether negligence or contributory negligence exists depends upon the facts and circumstances of the particular case." There are also statements in the annotations in 24 A.L.R. 1308 and 63 A.L.R. 280 to the same effect. The annotations cite cases
What the court said in Luther v. Pacific Fruit & Produce Co., 143 Wn. 308, 255 P. 365, 367, is pertinent to the instant case; "Whether such an emergency existed as justified the appellant in turning to the left to avoid an accident, and whether under this emergency the respondent acted with due prudence, was a question of fact for the jury. The law does not scrutinize too carefully an act done by one who has been put in a position of danger by one who inflicts injury upon him, but leaves it to the jury to say whether, under the circumstances, the act in seeking to avoid the danger was that of an ordinarily prudent man."
We hold that, under the circumstances here shown, it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence in turning to the left to avoid the threatened collision. The question is what would or might a prudent person do in the situation that confronted the plaintiff and that question was for the determination of the jury. Hatch v. Daniels, supra; Luther v. Pacific Fruit & Produce Co., supra; Saylor v. Taylor, 42 Cal.App. 474, 183 P. 843; Columbia Taxicab Co. v. Roemmich, Mo.App. 208 S.W. 859; White v. Beaumont Implement Co., Tex.Civ.App., 21 S.W.2d 559; Kull v. Advance-Rumely Thresher Co., 209 Wis. 565, 245 N.W. 589; Haner v. Wilson-Coffin Trading Co., 49 Ariz. 402, 67 P.2d 487; Riceland Petroleum Co. v. Moore, 178 Ark. 599, 12 S.W.2d 415; Coombs v. Markley, 127 Me. 335, 143 A. 261; Dunsmore v. Ralston Purina Co., 90 N.H. 470, 10 A.2d 665.
The defendant in her brief in support of sustaining the action of the trial court in granting her motion for a directed verdict claims that the negligence of the defendant was not the proximate cause of the accident. This point was not made below and was not a ground of the motion. As a general rule a point not made below is not for consideration here. Stoddard & Son v. Village of North Troy, 102 Vt. 462, 470, 150 A. 148; Breding v. Champlain Marine & Realty Co., 106 Vt. 288, 294, 172 A. 625; Sears v. LaBerge, 116 Vt. 168, 172, 71 A.2d 687. But, inasmuch as we may sustain a ruling upon any legal ground whether or not brought to the attention of the trial court, Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 344, 111 A. 346; New England Acceptance Corp. v. Nichols, 110 Vt. 478, 488, 8 A.2d 665, this claim is considered.
The defendant admits she was negligent in driving on the wrong side of the road on the curve. To be actionable, such negligence must be a proximate cause of the accident. Skoll v. Cushman, 111 Vt. 160, 165, 13 A.2d 180. She claims her negligence was not the proximate cause of the accident because she had attempted to regain her own side of the road and would have done so and there would have been no accident except for the conduct of the plaintiff in turning to his left and getting onto the defendant's side of the road. It is apparent from what has already been said herein, including this claim of the defendant and it needs no further comment to show, that it cannot be said as a matter of law that the defendant's negligence was not the proximate cause of the accident. Certainly, it was a jury question.
It was error to grant the defendant's motion for a directed verdict. Judgment reversed and cause remanded.