Bernard W. Higgins, Admr. v. Charles T. Metzger

• Decision Date: 03 October 1928
• Citation: 143 A. 394,101 Vt. 285
• Parties: BERNARD W. HIGGINS, ADMR. v. CHARLES T. METZGER
• Court: Vermont Supreme Court

143 A. 394

101 Vt. 285

BERNARD W. HIGGINS, ADMR. v. CHARLES T. METZGER

Supreme Court of Vermont

October 3, 1928

January Term, 1928.

Negligence---Automobiles---Self-invited Guest---"Excessive Speed" and "Unlawful Speed" Not Necessarily Synonymous---Violation of Statute as Negligence---View of Evidence on Motion for Directed Verdict---Speed as Negligence---Jury Question---Relative Duties of Guest and Driver of Automobile---Contributory Negligence---Duty of Guest re Protesting against Speed of Automobile---Effect of Ignorance of Speed---Tendency of Evidence and Not Weight Considered on Motion for Directed Verdict---General Exceptions---Instructions as to What Jury Might Consider on Question of Contributory Negligence---Sufficiency of Evidence To Take Case to Jury---Damages---Present Worth---What Record Must Show for Excepting Party To Prevail---Necessity of Raising Specific Question in Lower Court---Effect of Failure of Counsel To Point out to His Opponents Defects in Record---Mistakes and Omissions in Record---Rule as to Affirmance of Judgment---Record as Importing Verity---Insufficiency of Record To Apprise Trial Court of Error Claimed---No Presumption of Error---Amendment of Record---Essentials To Secure Amendment To Cure Defects in Record after Decision of Supreme Court---Knowledge of Defects as Affecting Exercise of Supreme Court's Discretion---Ignorance of Defect Due to Party's Own Fault.

1. Negligence of driver of automobile in which person was riding as a guest, though self-invited, cannot be imputed to guest where no joint enterprise existed and driver was in sole control of car.

2. In such circumstances, question of guest's negligence must be determined by what he did or omitted to do, without regard to driver's lack of care.

3. In relation to question of negligence in handling of motor vehicles, "excessive speed" and "unlawful speed" are not necessarily the same thing, since a speed which is lawful may be dangerous, while a speed in excess of statutory limit, though unlawful, may be safe, depending on circumstances.

4. Although speed of motor vehicle in an incorporated village in excess of statutory limit, is by statute made prima facie evidence of negligence, violation of such statute is not negligence as a matter of law.

5. On defendant's motion for a directed verdict, evidence must be viewed in light most favorable to plaintiff.

6. Where automobile was driven through streets of incorporated village at night, on smooth straight road, which was wide and level and entirely free from traffic, at a speed of 35 miles an hour, which was substantially higher than limit fixed by statute, held that question of negligence could not be decided as matter of law, but was for jury.

7. Duty of guest riding in automobile is not co-extensive with that of driver, and he is not held to same degree of watchfulness to keep down speed.

8. Law fixes no specified speed at which guest riding in automobile must register his protest as to speed or be held guilty of contributory negligence as matter of law.

9. Guest riding in automobile who is ignorant of speed and perils incident thereto, cannot be held to same responsibility as one having full knowledge of such things.

10. Guest riding in automobile who does not know its speed is not negligent as matter of law for failure to protest as to its speed.

11. Guest riding in automobile held not bound to anticipate that driver would attempt to make turn at place of accident and then to get back into the straight road again.

12. On defendant's motion for a directed verdict at close of evidence, in action for death by defendant's negligent operation of an automobile, court deals with tendency of evidence, and not its weight.

13. In

ACTION OF TORT to recover for death of guest riding in defendant's automobile through alleged negligence of defendant, where automobile at time of accident was being driven through streets of incorporated village at speed in excess of statutory limit, but under circumstances which made jury question as to whether its speed was negligent, held that failure of such guest to protest against speed was not negligence as matter of law, but question was for jury.

14. Exception to supplemental charge "in so far as it conflicts" with certain of defendant's requests which had been complied with, but not pointing out wherein supplemental charge conflicted with such requests, and thus giving court no opportunity to set matter right, if error had been committed, held not sufficiently specific to be availing.

15. In action of tort to recover for death of intestate, which occurred while he was riding as guest in automobile which defendant was driving, instruction that plaintiff had burden of showing that intestate was free from contributory negligence, but that this did not require evidence distinctly directed to that negative proposition, and that any evidence tending to show intestate's death was due solely to defendant's negligence tended to show intestate's freedom from negligence, and that it was a question to be inferred from attending circumstances, held without error.

16. Evidence of such facts and circumstances as warrant an inference of due care on plaintiff's part is sufficient to take case to jury on question of his contributory negligence.

17. In action of tort to recover for death of intestate by defendant's negligence while riding as guest in automobile driven by defendant, verdict for exact sum claimed as damages to minor children of intestate, held to show that jury had awarded largest sum claimed as damages, without reducing it to its present worth correspondence of figures in the circumstances being evidence of identity.

18. In such action, where jury awarded largest sum claimed as damages to minor children of intestate, without reducing it to its present worth, trial court, upon proper application should set aside verdict or order a remittitur, failing in which Supreme Court, may rectify error, but at plaintiff's expense.

19. Excepting party, to prevail, must produce record in Supreme Court that makes it appear that harmful error was committed in trial court.

20. Unless exceptions show that question argued in Supreme Court was raised below, it will not be considered.

21. To receive consideration in Supreme Court, it must appear that exception was sufficiently specific to apprise trial court of its real point.

22. On motion to set aside verdict as too large, grounds thereof must be stated with such certainty that trial court can understandingly pass upon it.

23. Where record concerning motion to set aside verdict as contrary to instructions and excessive failed to show that lower court was apprised that claim was predicated upon failure of jury to reduce sum to be awarded to its then present worth, held that exception was not sufficiently specific to make latter ground available in Supreme Court.

24. Counsel has no duty to point out to his opponents defects in record, and his failure to do so is of no consequence on consideration of exception to lower court's refusal to set aside verdict as contrary to instructions and excessive except possibly upon question of exercise of Supreme Court's discretion.

25. Excepting party alone carries risk of mistakes and omissions in record, and cannot shift this responsibility onto opposing counsel or court, either in Supreme Court or lower court.

26. Supreme Court will affirm a judgment whenever this can legally be done, whether ground on which its decision is based is urged by counsel or not; but will not search for grounds on which to predicate error.

27. On exceptions in Supreme Court, record imports absolute verity, and anything not shown by it is out of case.

28. Although transcript was made part of bill of exceptions, and original motion to set aside verdict as contrary to instructions and excessive, being part of files, was before Supreme Court for consideration, though not referred to in bill, transcript only showing what was said at trial before verdict by counsel and court relative to present worth, and making no reference to what was said or done after verdict was rendered, and motion not stating wherein verdict was contrary to instructions, or wherein there was any shortage of evidence, held that record did not show that motion was predicated upon failure of jury to reduce its award to its then present worth, and that question was not for consideration by Supreme Court.

29. Error is never presumed, but must be made to appear, and the construction of record on review is always against excepting party.

30. A record may, on seasonable application, be so amended as to speak the truth.

31. Only in very special and exceptional cases will a rehearing be granted after a decision has been announced in appellate court, to enable excepting party to supply defects in record.

32. Knowledge of defect in record is a circumstance affecting exercise of discretion of Supreme Court in granting or withholding rehearing to enable excepting party to correct defects in record.

33. Where defendant, who had excepted to overruling of his motion to set aside verdict as contrary to instructions of court and excessive, was not informed of defect in record, whereby on account of general language employed point was not raised that jury erred in failing to reduce its award to its then present worth, until decision of Supreme Court was announced, held that, defect being due to his own fault, defendant's ignorance did not make his case "very special" or "very exceptional," so as to entitle him to permission for correction of defect on rehearing.

ACTION OF TORT by administrator to recover damages sustained by minor children in death of their father, which occurred in an accident while he was...