Cenate v. Hunter., 1170.

• Decision Date: 15 December 1948
• Docket Number: No. 1170.,1170.
• Citation: 62 A.2d 645
• Parties: CENATE v. HUNTER.
• Court: Vermont Supreme Court

62 A.2d 645

CENATE

v.HUNTER.

No. 1170.

Supreme Court of Vermont.

Oct. 5, 1948.

Motion for Reargument Denied Dec. 15, 1948.

Exceptions from Windham County Court; Cleary, Presiding Judge.

Personal injury action by Frank Cenate against Vernal Hunter. Plaintiff's motion to set aside verdict in his favor and to grant new trial on issue of damages was overruled, and the plaintiff brings exceptions.

Judgment reversed and verdict set aside as to damages and new trial ordered on issue of damages only.

Gibson, Gibson & Crispe, of Brattleboro, and Natt Divoll, of Bellows Falls, for plaintiff.

Osmer C. Fitts and John A. Lowery, both of Brattleboro, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

MOULTON, Chief Justice.

A motor truck operated by the defendant collided with a horse drawn vehicle driven by the plaintiff. The result was a law suit. At the close of the trial the jury returned a verdict for the plaintiff to recover the sum of $376. He moved to set aside the verdict and to grant a new trial on the issue of damages, setting forth among other grounds that the verdict was grossly inadequate and contrary to the instructions of the Court. The motion was overruled, the plaintiff took an exception, and so the cause is before us.

A motion to set aside a verdict on the ground that the damages awarded are inadequate is addressed to the discretion of the trial court and the ruling thereon is not subject to review unless an abuse of discretion is made to appear. Dusckiewicz v. Carter, 115 Vt. 122, 126, 52 A.2d 788; Bennett v. Robertson, 106 Vt. 112, 113, 169 A. 901. To warrant interference where there is no standard of damages disclosed by a contract, or otherwise ascertainable by exact evidence of pecuniary loss, the amount must be clearly shown to be grossly insufficient. Brace v. Hulett, 109 Vt. 360, 363, 196 A. 742; Barrette v. Carr, 75 Vt. 425, 428, 56 A. 93; and see Bennett v. Robertson, supra. The fact that the verdict has received the express approval of the trial court inclines us strongly in its favor. Mullett v. Milkey, 113 Vt. 42, 45, 29 A.2d 806; Rule v. Johnson, 104 Vt. 486, 491, 162 A. 383. If it can be justified upon any reasonable view of the evidence, considered in the light most favorable for the defendant, the ruling must stand. Dusckiewicz v. Carter, supra. But where a motion to set aside a verdict is upon the ground that it was contrary to the instructions of the court the rule as to discretion does not apply and the ruling is revisable here. Mullet v. Milkey, supra, 113 Vt. at page 44, 29 A.2d at page 807 and cas. cit.

The elements of damage as alleged in the complaint and submitted to the jury in the charge are these: the plaintiff's medical expenses; his pain and suffering, past, present and future; his loss of earning capacity resulting from his injuries; the loss of the horse; and the destruction of his wagon.

As to the first item there is no dispute. The plaintiff paid $6 for medical attention and $45 for x-ray photographs. As to the plaintiff's pain and suffering the evidence, taken most favorably for the defendant, tended to show that he sustained a blow on his head, several abrasions thereon and on one elbow and two cracked ribs; that, except for the injury to the ribs, he was not badly injured; that the x-ray photographs disclosed no fracture of the skull, but an arthritic condition of the spine, extending its entire length and to the ribs where they joined the spine, that had no connection with the accident and had probably existed for some years before it occurred; that this condition might have been aggravated, but only temporarily, by the accident, and that at the time of the trial no indication of aggravation appeared. The plaintiff was discharged by his physician about six weeks after the accident. He testified that since the time of his injuries up to the time of the trial he suffered from backache and intermittent headaches. There was conflicting testimony concerning the cause and probable duration of these disabilities, but there was medical evidence to the effect that the then present backache was due to arthritis, and not to the cracked ribs, and that the headaches were caused by the need for eye glasses. There was, however, undisputed evidence that the rib injuries caused the plaintiff pain during the healing process and that the blow upon his head would naturally result in a headache of about a week's duration. From the above recital it appears that the jury would have been justified in finding that no pain or suffering was proximately caused by the accident, subsequent to the expiration of six weeks after its occurrence.

Concerning his loss of earnings, it appeared that for three or four weeks before his injuries the plaintiff was earning between $50 and $60 a week, and that his employment was still open to him. His pay included his services with the horse and his tools, and compensation for an occasional helper. There was no specific evidence as to the frequency of such assistance. All that appeared was that the plaintiff worked alone most of the time. There was evidence tending to show that he was unable to do manual labor during the six weeks required for the healing of his cracked ribs, but that, so far as any injuries caused by the accident were concerned, he was able to resume his work after that time, and it was open to the jury to conclude that this was so.

There was testimony that the horse was the property of the plaintiff's wife, which she paid for partly in cash and partly by her promissory note, the bill of sale being in her name and the animal delivered to her. The jury were instructed, without objection, that the plaintiff was not entitled to recover for its loss unless they were satisfied that he owned it, but if it belonged to his wife he could not...