Cyr v. Green Mountain Power Corp.

• Decision Date: 30 November 1984
• Docket Number: No. 83-191,83-191
• Parties: Gwendolyn CYR v. GREEN MOUNTAIN POWER CORP.
• Court: Vermont Supreme Court

Page 1265

485 A.2d 1265

145 Vt. 231

Gwendolyn CYR v. GREEN MOUNTAIN POWER CORP.

No. 83-191.

Supreme Court of Vermont.

Nov. 30, 1984.

Otterman & Allen, P.C., Bradford, for plaintiff-appellant.

Michael G. Furlong of Sheehey, Brue & Gray, Burlington, for defendant-appellee.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Plaintiff Gwendolyn Cyr appeals from a judgment in favor of defendant Green Mountain Power Corporation on her suit for damages for the electrocution of several of her cows. We affirm.

Several of plaintiff's dairy cows were electrocuted while housed in her barn. Although the barn wiring was in some locations several years old and copper pennies had been inserted to replace fuses, an examination by plaintiff's experts failed to discover any voltage leaking therefrom. Defendant conceded that the cows had been electrocuted, but its inspection of its lines up to the point of connection with the barn wiring also revealed no defects. Both parties litigated the case on the theory that a single source of leakage, somewhere, had caused the deaths. Plaintiff, by relying on the principles of res ipsa loquitur, sought to establish liability through an inference of negligence on defendant's part.

On appeal, plaintiff, for the first time, contends that the court should have instructed the jury on comparative negligence. Although there was a passing reference during a bench conference to the possibility of the jury finding negligence by both parties, neither party requested a comparative negligence instruction or objected to the failure of the court to give such a charge. V.R.C.P. 51(b) explicitly provides that "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Since the theory of the case and the evidence both tended to the view that the sole cause of the electrocutions lay either in plaintiff's wiring or in defendant's system, the court was justified in not injecting, sua sponte, comparative negligence into the case; having failed to object below, plaintiff is precluded from raising the issue on appeal. Ordinetz v. Springfield Family Center, Inc., 142 Vt. 466, 471, 457 A.2d 282, 285 (1983); Collette v. Bousley, 141 Vt. 373, 374, 449 A.2d 936, 936-37 (1982); Palmisano v. Townsend, 136 Vt. 372, 374, 392 A.2d 393, 395 (1978).

Plaintiff also objects in her brief to some of the language of the court's instructions. During its lengthy explanation, the court at one point stated that res ipsa loquitur permits "the jury the inference that a particular injury under investigation has occurred." As plaintiff correctly observes, it is not injury, but negligence, that the jury may infer. The plaintiff also complains about the court's repetition, in its instructions on res ipsa loquitur, of the vague words "instrument," "instrumentality," and "injuring agency," instead of adapting those general terms to the particular facts of the case before it and referring to electricity and power lines. These objections were not raised below and are therefore not preserved on appeal. Collette, supra, 141 Vt. at 374, 449 A.2d at 937; V.R.C.P. 51(b). Furthermore, reversal is not warranted because, taken in their entirety, Paton v. Sawyer, 134 Vt. 598, 600, 370 A.2d 215, 216 (1976), the instructions, as discussed below, were satisfactory.

The only issue properly raised below and preserved on appeal is plaintiff's objection to the court's application of res ipsa loquitur in its instructions to the jury. Plaintiff contends that the court erroneously placed the burden on her to show an absence of negligence on her part, by delivering instructions that stated:

If you should find as we have said that the proximate cause of the injury in the case is the electricity, if you find that it resulted from a defect in the lines and equipment of the defendant and not in the lines and equipment of the plaintiff, then you may bring back a verdict in favor of the plaintiff.

Plaintiff had requested the following jury instruction:

Unless you find contributory negligence on the part of the Plaintiff, the doctrine of res ipsa loquitur applies and the Plaintiff may establish the defendant's liability merely by proving that electrical current escaped from Defendant's system and that Plaintiff's property was injured thereby.

Plaintiff cited Salwiecz v. Rutland Railway, Light & Power Co., 101 Vt. 178, 180, 142 A. 77, 78 (1928), and Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 417, 139 A. 440, 442 (1927), in support of her request. In these pre-comparative negligence cases, any contributory negligence on the part of plaintiff would have barred recovery. Since enactment of Vermont's comparative negligence statute, 12 V.S.A. § 1036, contributory negligence no longer bars recovery in a case brought under a res ipsa loquitur theory. If a plaintiff presents evidence which satisfies the elements of res ipsa loquitur, even in the face of conflicting evidence, the jury must be given the opportunity to infer negligence on the part of defendant. If the jury finds defendant negligent, then it must compare that negligence with any negligence it finds was committed by plaintiff. See Turk v. H.C. Prange Co., 18 Wis.2d 547, 557-59, 119 N.W.2d 365, 371-72, (1963) (plaintiff no longer need be free from contributory negligence in order to rely on res ipsa loquitur; plaintiff's contributory negligence, if any, to be compared with defendant's negligence); Cramer v. Mengerhausen, 275 Or. 223, 228-30, 550 P.2d 740, 743-44 (1976); Montgomery Elevator Co. v. Gordon, 619 P.2d 66, 70 (Colo.1980) (contributory negligence no longer a bar to res ipsa loquitur).

The court declined to deliver the charge requested by plaintiff, and plaintiff objected, contending that under Vermont law an escape of current combined with an injury created an inference of negligence "so long as there is no contributory damage." She further claimed the court should have instructed that defendant had the burden of proving contributory negligence to prevent the operation of res ipsa loquitur.

Res ipsa loquitur (literally, "the thing speaks for itself") is not a magic doctrine that shifts the burden to the defendant. It simply refers to a form of circumstantial evidence. Prosser and Keeton on the Law of Torts § 40, at 257 (W. Keeton 5th ed. 1984). Thus, res ipsa loquitur allows the plaintiff to escape a directed verdict without directly establishing negligence, and it allows the jury a permissive inference of negligence. Id. at 258; see V.R.E. 301, Reporter's Notes at 323-24 (res ipsa loquitur "is generally considered to be sufficient to take the plaintiff to the jury but to create only an inference of negligence.")

The trial court in the present case set forth the four elements of res ipsa loquitur...