Clarence Parizo v. John Wilson

• Decision Date: 06 February 1929
• Citation: 144 A. 856,101 Vt. 514
• Parties: CLARENCE PARIZO v. JOHN WILSON ET AL
• Court: Vermont Supreme Court

144 A. 856

101 Vt. 514

CLARENCE PARIZO v. JOHN WILSON ET AL

Supreme Court of Vermont

February 6, 1929

January Term, 1929.

Automobiles---Negligence---Contributory Negligence---Jury Question---Harmless Error---Error in Judgment Rendered Immaterial by Verdict---Inadequate Briefing---Supreme Court Will Not Search Record for Error---New Trial---Power of Trial Court To Set Aside Verdict and Grant Retrial on One Issue Only---Constitutional Right to Jury Trial---Seventh Amendment, United States Constitution---Application of Rule Relating to New Trial on One Issue Only---When New Trial Should Be on All Issues---Necessity of Exception Below---Presumptions---Discretion of Court---Affirmative Showing of Abuse of Discretion Necessary---Inadequate Damages as Affecting Question of Abuse of Discretion in Setting Aside Verdict---Presumptions as to Rulings and Record Below---Test as to Abuse of Discretion.

1. In ACTION OF TORT to recover for injuries to person and property, resulting from an automobile collision, whether plaintiff failed to keep a proper watch on road, and, if so whether such negligence was a part of proximate cause of collision with approaching automobile, held for jury.

2. In such action, failure of plaintiff to sound horn of his automobile when ascending knoll, held not contributory negligence as matter of law.

3. Error, if any, in permitting plaintiff's counsel to argue subject of exemplary damages to jury, and of court in charging jury as to such damages, held harmless where it was apparent by a special verdict apportioning damages that no exemplary damages were awarded.

4. A judgment will not be reversed for an error that is rendered immaterial by verdict.

5. Exception, regarding which brief says nothing but that judgment should be rendered on verdict in favor of one of co-defendants as shown in previous discussion, held inadequately briefed, and not to present any point for consideration by Supreme Court, where "previous discussion" alluded to related solely to propriety of setting aside in part verdict against co-defendant.

6. Supreme Court will not search record for evidence to form a basis on which to reverse ruling below.

7. Trial court in a proper case has power to set aside a verdict and order a new trial upon one issue only.

8. Setting aside a verdict and ordering a new trial upon one issue only does not deprive parties of their constitutional right to a jury trial, nor is it denial of due process of law.

9. Seventh Amendment to federal Constitution applies only to proceedings in courts of the United States, and does not in any manner whatever govern or regulate trials by jury in state courts.

10. Rule that trial court may, in a proper case, set aside a verdict and order a new trial upon one issue only, is to be applied with caution with a view to furtherance of justice and whether or not it shall be applied is always a matter which rests within sound discretion of court.

11. Where, from inadequacy of damages awarded in view of evidence on subject and conflict of evidence upon question of liability, or from other circumstances, plain inference may be drawn, that verdict is result of compromise, the error taints entire verdict, and new trial should be ordered on all issues.

12. Where defendant in court below made no objection to form or scope of motion to set aside verdict, question is not for consideration in Supreme Court.

13. Where motion to set aside verdict on several grounds was in part at least addressed to discretion of trial court, Supreme court will presume, the contrary not appearing, that ruling was made as matter of discretion.

14. Where ruling of trial court is made as matter of discretion, Supreme Court cannot reverse ruling, unless an abuse of discretion, or what in law amounts thereto, affirmatively appears.

15. Damages in sum of $350 allowed for badly broken arm, confining plaintiff in hospital for about three weeks, with surgical attendance and hospital bills aggregating $230, evidence showing pain and suffering, and probably permanent impairment in use of arm, as well as loss of earnings, held entirely inadequate.

16. Damages in sum of $150, for injuries to automobile, repairs to which required expenditure of approximately $250, held inadequate.

17. Where damages allowed by jury were conceded by defendant to be inadequate, action of court in setting aside verdict and granting a new trial on question of damages only, held not an abuse of discretion.

18. Supreme Court will make every presumption in favor of ruling below which is not positively inconsistent with record, and record must be construed to sustain such ruling, if it can be reasonably done.

19. Test whether court has abused its discretion is whether discretion was exercised on grounds, or for reasons, clearly untenable, or to an extent clearly unreasonable.

ACTION OF TORT to recover for injuries to person and property, resulting from an automobile collision. Plea, general issue. Trial by jury at the September Term, 1928, Chittenden County, Willcox, J., presiding. Verdict against defendant John Wilson for $ 500, and verdict of not guilty as to defendant James Ferrari. On plaintiff's motion verdict against defendant Wilson was set aside as to damages only and new trial ordered on that question only as to him, and verdict against defendant Ferrari was set aside and new trial granted as to all issue against Ferrari. The defendants excepted. The opinion states the case.

Judgment affirmed and cause remanded.

C. O. Granai, E. C. Dufficy, and J. W. Gordon for the defendants.

J. A. McNamara and Guy M. Page for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, ^[1] and CHASE, JJ.

OPINION

MOULTON

This is an action in tort to recover for injuries to person and property arising from an automobile collision. The accident took place in Canada, a short distance north of the border. The plaintiff was driving south, and the defendant's car was proceeding in the opposite direction. After a trial by jury, the verdict was for the plaintiff as against the defendant Wilson, with damages of $ 500. The defendant Ferrari was found not liable. It appeared that Ferrari owned the car, and that Wilson was driving it. Whether Ferrari was present was a controverted question, but certain evidence tended to show that Wilson was his agent, and, at the time of the accident, was driving his car as such. At the close of all the evidence, the defendants seasonably moved for a directed verdict, and the first exception briefed is to the overruling of the motion. The only ground relied upon is that the evidence, taken in the most favorable light for the plaintiff, showed that he was guilty of contributory negligence.[1] The accident took place after dark. The plaintiff testified that he did not see the lights of the defendant's car until it was about 15 feet away, and from this it is argued that he was not keeping watch of the road, and that his failure to do so was negligence.

The collision happened at the top of a knoll, where the road curved to the right of the direction in which the plaintiff's car was proceeding. The evidence tended to show that he was driving at between 20 to 25 miles an hour, and on the extreme right-hand side of the road. The road was smooth and about 20 feet wide. When he reached the top of the knoll, he saw the lights of the defendant's car approaching, and pulled out still further to the right, so that the right-hand wheels of his car were in the ditch by the roadside. The plaintiff's evidence tended also to show that the defendant's car was approaching upgrade on the opposite side of the knoll at a speed of 40 to 50 miles an hour. The evidence tended to show that curve had the effect of throwing the lights of the defendant's car to one side, so that they would shine away from the road.

It is evident, of course, that any estimate of distance or speed must, under the circumstances, be somewhat inaccurate, but even with this in mind, the question whether the plaintiff was negligent in the respect claimed, and if so, whether such negligence was a part of the proximate cause of the accident was, on the evidence, for the jury.

It is argued that the fact that the plaintiff suffered injuries to his left arm showed that his arm was outside the body of the car, and that the necessary inference is that he was driving with one hand, which was negligence in itself. Without accepting this legal conclusion, it is enough to say that the claim is refuted by the transcript. The plaintiff testified that his left arm was resting on the ledge of the window of the car, but not projecting beyond it, and that he was using both hands on the wheel. This evidence was corroborated by the plaintiff's brother, who was with him. No evidence to the contrary was introduced.

So, too, the fact that, upon ascending the knoll, the plaintiff did not sound his horn, did not constitute contributory negligence as a matter of law. It was clearly for the jury to pass upon this question. There was no error in overruling the motion for a verdict.

This disposition of the matter makes it unnecessary to consider the plaintiff's argument that the motion was waived by not being renewed after the case was reopened to permit the introduction of evidence which bore upon the question of damages only.

The court permitted counsel for plaintiff to argue the subject of exemplary damages to the jury, and, also, charged upon this class of damages. The defendants excepted. But, at most harmless error only was committed, because it is apparent that no exemplary damages were awarded. By a special verdict the general verdict of $ 500 was apportioned as follows: Damages to the car $ 150; damages to person, $ 350. The rule is well settled...