Callaghan v. A. Lague Express
Decision Date | 05 January 1962 |
Docket Number | No. 160,Docket 27083.,160 |
Citation | 298 F.2d 349 |
Parties | Doris N. CALLAGHAN, Appellee, v. A. LAGUE EXPRESS, Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Douglas C. Pierson, Burlington, Vt. (Black, Wilson & Hoff, Burlington, Vt., on the brief), for appellant.
Robert Eastman, Burlington, Vt. (Latham & Eastman, Burlington, Vt., on the brief), for appellee.
Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.
This action was brought by plaintiff, a citizen of New Hampshire, to recover for personal injuries sustained in a collision between a truck owned by defendant and an automobile in which plaintiff was riding as a passenger. Defendant is a Canadian company. The jury returned a verdict for plaintiff for $6590 and defendant appeals. We reverse the judgment entered on the verdict, and remand the case for a new trial, because of errors in the judge's charge to the jury and because the court permitted plaintiff's counsel to indulge in improper argument to the jury.
The trial of this case took place from Monday, May 15 to Wednesday, May 17, 1961. On the previous Friday, May 12, the judge who presided at the trial gave a "general charge" to those who had been called to act as jurors at the term of court which was to open the following Monday. While the exact words used by the judge in his "general charge" do not appear in the record of this case, their general purport is made sufficiently clear by the following exchange which occurred between counsel for defendant and the court:
Further light is thrown on the character of the charge by the following:
It is quite apparent from these two passages that the judge charged the jury that they should award a plaintiff such damages as they would wish a jury to award them if they were in the position of the plaintiff. Defendant's objection to the charge was sufficiently definite to permit reliance on the error if the charge was erroneous.
That the charge was erroneous is established by Duchaine v. Ray, 110 Vt. 313, 6 A.2d 28 (1939). In that case objection was taken to the argument of plaintiff's counsel: "put yourself in the place of this plaintiff, and assess damages on that theory." This...
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