Brunelle v. Coffey, 26-68
| Decision Date | 07 April 1970 |
| Docket Number | No. 26-68,26-68 |
| Citation | 128 Vt. 367,264 A.2d 782 |
| Court | Vermont Supreme Court |
| Parties | Walter E. BRUNELLE v. Bernard W. COFFEY. |
Lisman & Lisman, Burlington, for plaintiff.
Wick, Dinse & Allen, Burlington, for defednant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This case, here on appeal by the plaintiff, raises two questions for review-whether the court erroneously (1) refused to charge as requested by the plaintiff 'that plaintiff is entitled to a verdict in this cause' and (2) denied plaintiff's motions to set aside the verdict and grant a new trial based on the claim that the verdict was grossly inadequate.
The plaintiff seeks to recover damages for alleged personal injuries and property damage caused by a rear end collision with his car by defendant's vehicle. At the close of the evidence and before arguments, the plaintiff filed written requests to charge, one of which reads: 'that the court instruct the jury that the plaintiff is entitled to a verdict in this cause'. The plaintiff did not move for a directed verdict on liability either at the close of plaintiff's case or at the close of all the evidence. The court submitted the case to the jury with negligence and contributory negligence as issues for their determination. The plaintiff claims that this was error in view of all of the evidence in the case and that this opened the door for the jury to bring in a compromise verdict.
In support of this exception the plaintiff cites in his brief the facts as shown by the evidence surrounding the occurrence of the accident. He then argues that the conduct of the defendant as shown by such facts was negligence and entitled the plaintiff to a directed verdict, citing Scrizzi v. Baraw, 127 Vt. 315, 248 A.2d 725. From this it would appear that the plaintiff views his request to charge that he is 'entitled to a verdict' as a motion for a directed verdict. The form, nature and purpose of a motion for a directed verdict is entirely different from a request to charge and one cannot be substituted for the other to effectuate the same result.
In any event, the jury returned a verdict for the plaintiff which resolved the issue of negligence and contributory negligence in his favor and established the defendant's liability. The plaintiff received all he could except to get in this respect either by a motion for a directed verdict or by his request to charge.
The plaintiff does not point out in what manner he was prejudiced except to state that the action of the court opened the door for a compromise verdict. Prejudice must be established by the party claiming it. Lewis v. Gagne, 123 Vt. 217, 220, 185 A.2d 468. None is shown here. Furthermore, it cannot be assumed that the jury did not abide by the trial court's instructions and returned a compromise verdict. Id. at page 219, 185 A.2d 468. This exception lacks support in the record and is without merit.
Plaintiff's second assignment of error is that the court abused its discretion in refusing to grant his motion to set aside the verdict and grant a new trial. The plaintiff stated five grounds in his motion all of which relate to the amount of damages, namely, (1) the verdict is not supported by the evidence; (2) disregard of the court's instructions by the jury; (3) verdict was a result of compromise; (4) verdict was the result of passion, prejudice and bias; and (5) verdict was grossly inadequate.
The plaintiff's brief deals primarily with the first and last mentioned issues, if being his claim that the jury returned a verdict for less than the plaintiff's pecuniary loss with nothing added for pain and suffering.
In treating these questions we must view the evidence in the light most favorable to the defendant since the weight of the evidence is against the party who challenges it. We must determine whether the jury could reasonably have found its verdict for damages on the evidence before it. Quesnel v. Raleigh, Vt., 258 A.2d 840. On review of the ruling of the trial court denying such a motion and upholding the jury verdict, this Court must indulge every reasonable presumption consistent with the record in favor of the ruling below. Rutland Sash & Door Co. v. Gleason, 98 Vt. 215, 225, 126 A.2d 577.
The accident happened in Winooski on December 21, 1963. Plaintiff's automobile was stopped at an intersection waiting to make a left turn. It was snowing some and the road was wet in spots. The defendant in approaching plaintiff's vehicle from the rear couldn't stop and collided with its rear corner. The force of the collision moved plaintiff's car forward about three feet. The defendant had a talk with the plaintiff in the latter's car but plaintiff said nothing about being injured. The defendant testified that it didn't seem to him 'like he was injured.' After the police investigation plaintiff drove his car to his store in Winooski.
That afternoon the plaintiff, because of pain in his neck, consulted Doctor Louis Thabault, who specialized in general surgery. The accident did not result in overnight hospitalization of the plaintiff but x-rays were taken on December 23, 1963. The x-ray pictures showed no fractures of the ribs and normal thoracic spine but did show areas of arthritis in the cervical spine. This arthritic condition pre-existed the accident. Plaintiff's injury arising from the accident was described as a cervical thoracic sprain and was in the same area of the arthritis.
Up to the date of the trial a period of 4 1/2 years had elapsed since the accident. During this time plaintiff saw the doctor at his office every week for the first six months after the accident, every other week for the next six months, and after that once a month. For at least during the previous year before trial, the treatment consisted simply of 'medication, encouragement and evaluation.'
The evidence shows that in this period of 4 1/2 years the plaintiff was continually making complaints to his doctor of headaches and discomfort in his neck. He testified that he was 'not ever free of pain during his waking hours.' In addition plaintiff made other complaints to his doctor relating to his physical condition-foggy vision, stiffness of his back, cold and sore throat, nosebleeds, numbness in his arms and hands, swelling of his right elbow, respiratory infection and abdominal pain. Plaintiff was sent to a Dr. Cunningham for an eye examination but there is no evidence of the result. In July, 1964, he was sent to Dr. J. E. Simpson, an orthopedic surgeon, for an examination and in May, 1965, he was sent to Dr. H. L. Martin, a neurologist, for an examination. Neither of these medical experts testified nor was the result of their examinations made known.
Plaintiff began experiencing abdominal pain in October, 1964. X-rays were taken beginning on November 27, 1964, and as a result the presence of a gastric ulcer was discovered. Doctor Thabault put his patient on a dietary basis which treatment continued for about...
To continue reading
Request your trial
-
Brueckner v. Norwich University
...for damages on the evidence before it.'" Lorrain v. Ryan, 160 Vt. 202, 209, 628 A.2d 543, 548 (1993) (quoting Brunelle v. Coffey, 128 Vt. 367, 370, 264 A.2d 782, 784 (1970)). Viewed in the light most favorable to plaintiff, the evidence before the jury concerning lost earnings consisted of ......
-
Lorrain v. Ryan, 92-238
...credibility are for the jury, and, on appeal, all conflicts are to be resolved against the excepting party." Brunelle v. Coffey, 128 Vt. 367, 373, 264 A.2d 782, 785 (1970). Plaintiffs must show that an error in instructing the jury produced prejudice. Silva v. Stevens, 156 Vt. 94, 108, 589 ......
-
Turgeon v. Schneider
...credibility are for the jury, and, on appeal, all conflicts are to be resolved against the excepting party." Brunelle v. Coffey, 128 Vt. 367, 373, 264 A.2d 782, 785 (1970). The jury believed plaintiffs' witnesses over the defendants', and their findings will not be disturbed by this Court. ......
-
Monti v. Town of Northfield
...it in any way. The defendant is obliged to establish that the alleged error was prejudicial and injured its rights. Brunelle v. Coffey, 128 Vt. 367, 369, 264 A.2d 782 (1970); Crawford v. State Highway Board, 130 Vt. 18, 285 A.2d 760 (1971). Further, no objection was ever made at any time as......