298 F.2d 352 (2nd Cir. 1962), 95, McNamara v. Dionne

Docket Nº:95, 27088.
Citation:298 F.2d 352
Party Name:Paul T. McNAMARA, Administrator of the Estate of John Grigel, Deceased, Plaintiff-Appellee, v. Ernest P. DIONNE, Defendant-Appellant.
Case Date:January 15, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 352

298 F.2d 352 (2nd Cir. 1962)

Paul T. McNAMARA, Administrator of the Estate of John Grigel, Deceased, Plaintiff-Appellee,

v.

Ernest P. DIONNE, Defendant-Appellant.

No. 95, 27088.

United States Court of Appeals, Second Circuit.

January 15, 1962

Argued Nov. 13, 1961.

Page 353

Fitts & Olson, Brattleboro, Vt., for defendant-appellant.

Black & Plante, White River Junction, Vt., for plaintiff-appellee.

Before SWAN, MOORE and SMITH, Circuit Judges.

SWAN, Circuit Judge.

This is an action by the administrator of the estate of a deceased child to recover damages for 'the pecuniary injuries resulting from such death' to his parents. The action was brought pursuant to the Vermont Wrongful Death Act, Title 14 1492, Vermont Statutes Annotated. It was tried to a jury, whose verdict awarded plaintiff $15,000. Federal jurisdiction rests on diversity, plaintiff being a citizen of New Hampshire and defendant a citizen of Vermont.

The accident happened about 2:30 P.M. on May 25, 1960, in the Town of Hartford, Vermont. No eyewitness testified. The following story is elicited from witnesses called by the plaintiff. John Grigel, who was killed by defendant's car, was slightly less than eight years old. He and two or three other children were walking home after school. They were walking north on the sidewalk at the easterly side of U.S. Route 5, a paved highway about sixteen feet wide. The sidewalk is two or three feet east of the pavement. Route 5 runs in a northerly direction out of White River Junction. Defendant was driving north in the right hand lane of Route 5. He saw the group of school children ahead of him on the sidewalk and sounded no horn or other warning signal. He also saw a police car further north coming toward him. He says he was watching the police car and did not know of the accident until he saw a little boy either lying on the hood of his car or falling off it. The driver of the police car testified that he observed the group of children on the sidewalk and met them before he passed Dionne's car; that when he was beside Dionne's car or by it, he heard the brakes squeal, looked in the rear view mirror and saw the Dionne car pull to the left side of the highway and a child bouncing down the side of the road. Another police officer, who arrived after the accident to investigate it, testified as to marks in the road and thought the boy's body was about forty-nine feet from where the original impact occurred. There was no evidence that defendant was speeding. The witnesses estimated that he was going between twenty and thirty miles an hour. The posted speed limit at the place of the accident was forty miles.

The complaint alleged that the negligence of the defendant caused the boy's death. The court properly charged the jury that plaintiff had the burden of proving the defendant to have been negligent and such negligence to have been the proximate cause of the accident; and that the defendant had the burden of proving contributory negligence on the part of the boy, a defense pleaded in defendant's answer.

We think it clear that the evidence as to negligence and its causal relation to the boy's death made a case for submission to the jury. Indeed, appellant's brief presents no argument to the contrary. The errors alleged by the appellant relate to instructions given or refused, to alleged prejudicial conduct of the court, to failure to dismiss on jurisdictional grounds, and to denial of a motion for a new trial.

At the opening of the February 1961 term of court, Judge Gibson delivered a 'general charge' to the panel of jurors convened to hear cases during the term. He told them that in fixing the amount of damages, if they found the defendant liable, they should award the plaintiff 'such damages as you yourself would want to be awarded if you were the plaintiff and were entitled to have damages awarded.' When a jury was drawn in March to try the present case, counsel for defendant objected that the quoted charge to the panel was not the law of Vermont and should be corrected, but the court ruled that the objection came too late. As a plaintiff is entitled only to just compensation for

Page 354

the wrong done, what counsel calls 'The Golden Rule' charge is not the law of Vermont. That the charge to the panel was erroneous has been very recently explicitly decided by this court. See Callaghan v. A. Lague Express, 2 Cir., 298 F.2d 349, discussing Vermont decisions. But reversal of the judgment on this ground is not necessary. The error could have been corrected when the trial jury was charged. No request to correct it was made at that time, and the error was not then repeated. The utility of a general charge to the panel may well be doubted. Cf. United States v. Allied Stevedoring Corp. et al., 2 Cir., 258 F.2d 104, 107, cert. den. 358 U.S. 841, 79 S.Ct. 58, 3 L.Ed.2d 76.

A more troublesome question is the court's failure to grant defendant's request No. 11 dealing with burden of proof as to damages. 1 Mr. Fitts' statement: 'The Court hasn't removed speculation from the case at all,' may have caused the trial judge to think the matter sufficiently covered by the instruction previously given: 'Mere conjecture is not proof on the part of one who must make proof.' However, at that point in the charge the court was referring only to burden of proof on the issues of negligence and contributory negligence. Appellee...

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