Callahan v. Ida Mae Disorda

• Decision Date: 08 November 1940
• Citation: 16 A.2d 179,111 Vt. 331
• Parties: FRANCIS B. CALLAHAN, b/n/f v. IDA MAE DISORDA
• Court: Vermont Supreme Court

16 A.2d 179

111 Vt. 331

FRANCIS B. CALLAHAN, b/n/f v. IDA MAE DISORDA

Supreme Court of Vermont

November 8, 1940

October Term, 1940.

Negligence (Automobile).---1. Motion for Directed Verdict for Lack of Essential Element.---2. Motion for Directed Verdict on Ground no Evidence.---3. Motion for Directed Verdict at Close of Evidence.---4. No Directed Verdict after Jury Dis- charged.---5. Motion non obstante after Verdict not Equal to Motion for Verdict.---6. Motion for Verdict before Submission.---7. Presumption that Consideration of Motion within Discretion.---8. No Abuse of Discretion in Entertaining Motion for Verdict between Close of Evidence and Submission.---9. Allowance of Exceptions.---10. Operation of Auto near Child.---11. Operator Charged with Knowledge Children Erratic.---12. Presence of Child Requires Proportionate Care.---13. Due Care in Backing Blindly.---14. Care Required in Backing.---15. P. L. 5110, XI.---16. Precautions Necessary where Backing.---17. Child's Presence Affecting Duty under P. L. 5110, XI.---18. Motion for Directed Verdict.---19. Close Jail Certificate---P. L 2195.---20. Findings Unnecessary under P. L. 2195 are Surplusage.---21. "Next Friend" as Plaintiff.---22. Presumption of Requisite of P. L. 2195.

1. A motion for a directed verdict on the ground that there is a lack of evidence tending to prove an essential element of the plaintiff's case is adequate.

2. A motion for a directed verdict on the ground "that from all the evidence in the case there appears no evidence that the defendant was in any way negligent in the operation of her motor vehicle at the time and place and event in question" is not too general to bring to the Court's attention the precise point relied upon.

3. A motion for a directed verdict made at the close of the evidence is seasonably interposed and within the rules of Vermont practice.

4. A motion for a directed verdict can not be granted after a case has been submitted to the jury, a verdict returned and the jury discharged.

5. A motion for judgment non obstante verdicto filed after verdict has been returned but before judgment has been entered can not be treated as a motion for a directed verdict.

6. After the close of the evidence but before the submission of the case to the jury the court, in its discretion, may entertain and rule upon a motion for directed verdict.

7. If nothing to the contrary appears, the receiving and acting upon a motion for directed verdict between the close of the evidence and the submission of the case will be presumed to be a discretionary ruling that the motion was timely.

8. No abuse of discretion appears in entertaining a motion for a directed verdict between the close of evidence and submission to the jury.

9. The allowance of exceptions on all grounds stated indicates that the Court, properly, ruled on the merits of a motion as a question of law.

10. Taken in the light most favorable to the plaintiff, evidence that as the defendant drove her car to a stop near the middle of a street there was a three year old child playing on the sidewalk a little to the rear of where the defendant stopped her car and about thirty feet from it would justify the jury in finding that the defendant knew or ought to have known that the child was in the immediate neighborhood.

11. An automobile operator is charged with the common knowledge that very young children are erratic and likely to move quickly and without regard for their own safety.

12. If one knows that a child is in the highway, he is bound to a proportionate degree of watchfulness.

13. Due care is not evidenced for the safety of a child in the vicinity of a motor vehicle when the driver looked only in some less than all directions before backing the vehicle and injured a child which was in a direction toward which the driver didn't look.

14. Because of the limited view from the rear of a motor vehicle corresponding vigilance is required to avoid injury to persons whose presence in the rear of a vehicle is or should be known.

15. P L. 5110, XI imposes upon the driver of a motor vehicle the duty of using his eyes and ears before and while backing to the same extent as a prudent person would under like circumstances.

16. One operating a motor vehicle in a backward direction is bound to use all the precautions that a prudent person would take under like circumstances.

17. Whether the driver of a motor vehicle knowing of the recent presence of a child nearby and charged with knowledge of a child's likelihood to make sudden and unpredictable actions acted with the degree of care required by P. L. 5110 XI is a question for the jury.

18. Error does not appear in the denial of a motion for a directed verdict when the standard of care required of the operator of a motor vehicle is that of a prudent man and the operator's fulfillment of that standard is a question of fact.

19. "It is considered by the court that the defendant ought to be confined in close jail" as part of the adjudication by the Court conforms to the requirement of P. L. 2195.

20. Since P. L. 2195 does not require as a prerequisite to the issuance of a close jail certificate a finding or adjudication as to anyone receiving injuries, a finding that someone received injury is mere surplusage.

21. When a suit is brought by an infant suing by next friend the correctness of a description of the infant as plaintiff need not be decided when such a description forms no material part of the judgment.

22. If the contrary does not appear, it will be assumed that the trial court fulfilled the statutory requisite of a separate and independent examination of the evidence required by P. L. 2195 for the adjudication for a close jail certificate.

ACTION OF TORT brought by Francis B. Callahan, by her next friend, Charles F. Callahan, against the defendant. Trial by jury by the Rutland County Court, March Term, 1940, Hughes, J., presiding. Verdict and judgment for the plaintiff and close jail certificate issued. Defendant took exceptions. The opinion states the case.

Judgment affirmed.

James E. Bigelow for the defendant.

Asa S. Bloomer for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

The accident which is the basis for this tort action for negligence occurred on August 17, 1939, at about 6:15 in the afternoon. The defendant, accompanied by a man named Savage, drove her automobile westerly on Hopkins Street in the City of Rutland and stopped near the middle of the street and nearly in front of the driveway easterly of the house occupied by her companion's brother, which is number thirty-one on the north side of the street. Defendant's companion left the car and entered the house where he remained about five minutes while the defendant waited in the car. When Mr. Savage returned to the car he made a suggestion to the defendant which resulted in her attempting to park the car closer to the north side of the street. As she started to back the car for this purpose it struck a three year old boy who was removed, when the car was stopped, from a position under the car near the right front wheel. He had then suffered the injuries for which he here seeks, by his next friend, to recover damages. Trial by jury below resulted in a verdict and judgment for the plaintiff and the case is here on the defendant's exceptions.

After the conclusion of arguments of counsel but before the charge of the court to the jury the defendant moved for a directed verdict and saved an exception to the denial of her motion. The plaintiff contends that this motion was not properly for the consideration of the court because it was too general and was not made until too late. The sole ground for the motion was stated to be "that from all the evidence in the case there appears no evidence that the defendant was in any way negligent in the operation of her motor vehicle at the time and place and event in question." In Stoddard & Son v. North Troy, 102 Vt. 462, 470, 150 A 148, such a motion was based on the ground that the evidence, viewed in the light most favorable for the plaintiff, wholly failed to establish any right of action arising out of the contract alleged. The issues in that case were quite complicated and it was held that the ground stated failed to point out any precise basis upon which the motion was predicated and was too general for consideration. There was a similar holding in Saliba v. N.Y. C. R. R. Co., 101 Vt. 427, 144 A. 194, with respect to the ground that the evidence so viewed made out no cause of action against the defendant; also in Porter Screen Co. v. C. V. Ry. Co., 92 Vt. 1, 6, 102 A. 44, and in Merchants National Bank v. Carpenter, 105 Vt. 339, 342, 165 A. 909, in both of which the ground of the motion was that on all the evidence the plaintiff was not entitled to recover. In Castonguay v. Grand Trunk Ry. Co., 91 Vt. 371,...