Opinion
Opinion filed January 4, 1933.
Automobiles — "Gross Negligence" — Insufficiency of Evidence To Establish Gross Negligence.
1. "Gross negligence" for which guest may recover against automobile driver is higher in degree and more culpable than ordinary negligence, and amounts to failure to exercise slight degree of care.
2. In action of tort for negligence against driver of automobile by guest, for colliding with approaching truck, although such driver may have been careless in getting his car into ruts he had chosen, or in attempts to force it out of them, and should have stopped his car in sufficient time to avoid collision, held that, it appearing that he was trying to avoid accident, but made mistake or series of them, and there being nothing in record to indicate indifference to his duty to guests or utter forgetfulness of their safety, evidence was insufficient to establish gross negligence.
ACTION OF TORT for negligence against driver of car, in which plaintiff was riding as guest, and driver of truck with which it collided, plaintiff claiming gross negligence on part of former and negligence on part of latter. Trial by jury at the March Term, 1932, Rutland County, Davis, J., presiding. Verdict for defendant Peterson, the driver of truck, and against defendant Ravenna, the driver of the automobile in which the plaintiff was riding, and judgment on verdicts. Defendant Ravenna excepted. The opinion states the case. Reversed, and judgment for excepting defendant.
Fenton, Wing, Morse Jeffords for the defendant Ravenna.
Jones Jones for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Ravenna's automobile, in which Franzoni was riding as a gratuitous guest, collided with a truck driven by Peterson. Franzoni was hurt, and he brought this suit against both Ravenna and Peterson, claiming a recovery against the former on the ground of gross negligence, and against the latter on the ground of ordinary negligence. A trial by jury resulted in a verdict for Peterson and against Ravenna. The latter excepted, and the only question relied upon in this Court arises from the ruling of the court refusing to grant Ravenna's motion for a verdict.
The accident happened on the morning of March 10, 1931, on the highway between Center Rutland and Proctor. The road was deeply rutted, and the walls of the ruts were frozen. Ravenna was driving his car, the plaintiff sat on the front seat with him, and three other passengers were riding on the back seat. Ravenna's car was going northerly and there were two sets of ruts in the road. Instead of his taking the ruts on the right-hand side of the road, he was driving with his right wheels in one set of ruts and his left wheels in the other set. When he saw the truck approaching from the north, Ravenna seasonably attempted to turn his car to the right, but he could not get the wheels out of the ruts. He persisted in this attempt and finally brought his front wheels out, but was unable to get his rear wheels out. So he turned the front wheels back into the ruts. Again he attempted to force his car out of the ruts to the right and continued in this attempt until it was too late to stop his car, and it crashed into the truck, which had in the meantime been brought to a stop.
Counsel agree that there can be no recovery against Ravenna unless his handling of his car amounted to gross negligence. They agree that the term "gross negligence" is correctly defined in Sorrell v. White, 103 Vt. 277, 153 A. 359, and Shaw, Admr. v. Moore, 104 Vt. 529, 162 A. 373. So the rule that we are to apply is that gross negligence is higher in degree and more culpable in character than ordinary negligence — that it amounts to a failure to exercise a slight degree of care.
Tested by this rule, the record before us fails to justify a recovery against Ravenna. That he was careless, either in getting into the two ruts he appears to have chosen, or in his persistent attempts to force his car out of them, or both, may be admitted. That he should have stopped his car long enough before he hit the truck to have avoided a collision is quite apparent. But he was all the time trying to avoid an accident. He was doing his best to accomplish that result. He made a mistake, to be sure, perhaps a series of them, but he was not so far wrong as to evoke a protest from any of his passengers, and there is nothing in the record to indicate an indifference to his duty to his guests or an utter forgetfulness of their safety.
Judgment reversed, and judgment for the defendant to recover his costs.