Conway v. O'Brien

United States Court of Appeals for the Second Circuit · 1940 · Torts

111 F.2d 611 (2d Cir. 1940)

Updated July 23, 2026

Tortsgross negligenceguest statuteVermontautomobile collisionwrong side of roadcurvejury sufficiency

Facts

The plaintiff was riding as a passenger in O'Brien's car on a little traveled Vermont country road when O'Brien, driving north, collided with Wilson's southbound car about twenty feet beyond the south end of a covered bridge. The jury could find that O'Brien had been driving on the west, or wrong, side of the road while approaching a sharp curve leading into the bridge, at about fifteen miles per hour, without sounding his horn or taking evasive action until he saw Wilson emerge. The road was narrow, sloped downward toward the bridge, had some obstructed visibility on the turn, and local wheel tracks showed that drivers customarily took the curve on the left to make it more easily. O'Brien knew the spot well and admitted it should be taken at a snail's pace if another car was coming.

Issue

Was the evidence that O'Brien drove slowly on the wrong side of a narrow, partially blind curve approaching a bridge, without sounding his horn, sufficient to allow a jury to find the gross negligence required by Vermont's Guest-Occupant statute? Also, if not, could the appellate court direct dismissal after the trial court denied the defendant's motion for a verdict at the close of the evidence?

Rule

Under Vermont's Guest-Occupant statute, liability to a guest passenger requires more than ordinary negligence; the defendant's inexcusable conduct must fall so far short of the required balance of risk and precaution that it warrants opprobrium or reproach. Gross negligence denotes conduct more culpable than ordinary negligence, amounting to aggravated culpability or a failure grave enough to be more than a routine dereliction. Under Rule 50(b), denial of a motion for a verdict at the close of the evidence is deemed a submission to the jury subject to later determination, permitting dismissal if the evidence was legally insufficient.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Lena Ortiz rode as a nonpaying passenger in Noah Brenner's pickup on a lightly traveled gravel road outside Montpelier, Vermont. Noah took a partially blind bend on the left side of the road at about 12 miles per hour to make the turn easier, did not sound his horn, and struck an oncoming car when both vehicles appeared suddenly.

If Lena sues under a statute allowing a guest passenger to recover only for gross or willful negligence, which is the best result?

Explanation. The governing rule requires more than ordinary negligence. Gross negligence exists only when the driver's inexcusable conduct falls so far short of the required balance of risk and precaution that opprobrium or reproach attaches. Slow driving on the wrong side of a blind curve on a little-used country road, even without sounding a horn, is careless but may still be only a routine dereliction rather than the aggravated culpability the statute demands.