Opinion
Opinion filed October 4, 1938.
Existence of Gross Negligence Determined from Particular Facts — Test on Defendant's Motion for Verdict in Automobile Guest Action — Facts Held to Make Jury Question on Gross Negligence — Duty of Operator When Vision Obscured — Visibility Considered on Question of Gross Negligence — Gross Negligence Defined.
1. There is no concrete rule by which existence of gross negligence can be determined, for each case must be judged according to its own facts.
2. On defendant's motion for directed verdict in action by guest passenger in automobile for gross negligence based upon provisions of P.L. 5113, test is whether defendant's conduct in given situation was such that it can reasonably be inferred that accident was result of indifference to his duty to his guest or utter forgetfulness of latter's safety.
3. In action by guest passenger in automobile based upon provisions of P.L. 5113, where evidence, taken in light most favorable for plaintiff, tended to show that defendant, familiar with road and aware that traffic from opposite direction was to be expected, drove into heavy bank of fog at speed of twenty-five miles per hour, proceeded 100 feet on left of center of road and turned left to enter side road, failing to pass to right of and beyond center of intersection as required by P.L. 5110, subd. III, and taking no precaution to ascertain whether another car was approaching, and that collision occurred with automobile proceeding in opposite direction on its own right-hand side of main road, held that there was jury question on issue of defendant's gross negligence.
4. When vision of operator of automobile is obscured by fog, smoke or otherwise, so that he can see nothing ahead, it is his duty not to proceed.
5. Condition of visibility is circumstance to be considered on question of gross negligence.
6. Gross negligence is failure to exercise slight degree of care.
ACTION OF TORT to recover for personal injuries sustained in automobile accident. The plaintiff was a guest passenger in the defendant's automobile, and the action was based upon P.L. 5113 permitting recovery by guest passenger for gross or wilful negligence. Plea, the general issue. Trial by jury at the September Term, 1937, Rutland County, Jeffords, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.
Fenton, Wing Morse and John A.M. Hinsman for the defendant.
Asa S. Bloomer for the plaintiff.
Present: MOULTON, SHERBURNE, BUTTLES and STURTEVANT, JJ., and CLEARY, Supr. J.
There is no concrete rule by which the existence of gross negligence can be determined, for each case must be judged according to its own facts. Rich v. Hall, 107 Vt. 455, 459, 181 A. 113; Hall v. Royce, 109 Vt. 99, 104, 192 A. 193. When, as here, the question arises upon the defendant's motion for directed verdict in an action based upon the provisions of P.L. 5113, the test is whether his conduct in the given situation was such that it can reasonably be inferred that it was the result of an indifference to his duty to his guest or an utter forgetfulness of the latter's safety. Franzoni v. Ravenna, 105 Vt. 64, 66, 163 A. 564; Anderson v. Olson, 106 Vt. 70, 72, 169 A. 781.
Taking the evidence in the most favorable light for the plaintiff, it was open to the jury to find that the gravelled highway was twenty-four feet wide; that the defendant knew that traffic approaching from the opposite direction was to be expected; that he was familiar with the road, and with a side road to the left, into which it was his intention to turn; that he drove his automobile in a northerly direction, at a speed of twenty-five miles an hour, into a bank of fog so dense that nothing could be seen beyond the radiator of his car, proceeded for a distance of 100 feet on the left of the center of the road and then turned to the left to enter the side road; that, in so doing, he did not pass to the right of, and beyond the center of the highway as required by P.L. 5110, subd. III, but cut diagonally across the lane of opposing traffic; that he took no precaution to ascertain whether another car was approaching, being unable to see through the well-nigh impenetrable mist; and that, as he was about to enter the side road, a collision occurred with an automobile proceeding southerly upon its own extreme right-hand side of the main highway.
We have held that when the vision of the operator of an automobile is obscured by fog, smoke or otherwise, so that he can see nothing ahead, it is his duty not to proceed. Palmer v. Marceille, 106 Vt. 500, 508, 175 A. 31. The condition of visibility is, therefore, a circumstance to be considered upon the question of gross negligence. Dessereau v. Walker, 105 Vt. 99, 102, 163 A. 632; Miller v. Erickson (2d Cir.), 76 Fed. (2d) 598, 599. Taking this in connection with the other circumstances and the course of action pursued by the defendant, the jury would strain no inference if they should find that here was no momentary inattention, error in judgment or loss of presence of mind, but a deliberate act and the failure to exercise a slight degree of care, such as characterizes gross negligence, as defined in Shaw, Admr. v. Moore, 104 Vt. 529, 531, 162 A. 373, 86 A.L.R. 1139; Sorrell v. White, 103 Vt. 277, 282, 153 A. 359, and the other decisions heretofore cited.
There was no error in the denial of the motion for a verdict and this is the only issue before us.
Judgment affirmed.