Dashnow v. Myers

• Decision Date: 03 November 1959
• Docket Number: No. 339,339
• Citation: 121 Vt. 273,155 A.2d 859
• Court: Vermont Supreme Court
• Parties: Ruth G. DASHNOW v. Paul A. MYERS.

Page 859

155 A.2d 859

121 Vt. 273

Ruth G. DASHNOW v. Paul A. MYERS.

No. 339.

Supreme Court of Vermont.

Nov. 3, 1959.

J. William O'Brien, Winooski, for plaintiff.

Arthur & Arthur, Burlington, for defendant.

Before HOLDEN, SHANGRAW, BARNEY and SMITH, JJ., and DALEY, Superior Judge.

HOLDEN, Justice.

The jury returned a verdict for the defendant at the trial of this automobile negligence action. On motion of the plaintiff the trial court set the verdict aside as being against the weight of the evidence and ordered a new trial. This appeal challenges the propriety of that ruling.

The plaintiff Ruth G. Dashnow was injured while riding as a passenger in the front seat of an automobile operated by her husband. Seated at her right was Linda Trayah, a young girl of 11. The accident occurred shortly after 11 o'clock, the night of December 21, 1957. The weather conditions were described as good and the highway clear although there was some moisture on the pavement. The Dashnow vehicle turned from West Spring Street into North Street in the city of Winooski and proceeded north toward St. Peter Street. The distance between the West Spring Street intersection and the St. Peter Street crossing on North Street is attroximately 150 yards. St. Peter Street intersects North Street at right anales and these intersecting highways are level and straight for some distance from the junction. At the intersection, North Street is 29 feet wide and St. Peter Street is 28.7 feet in width.

The defendant was operating a Pontiac two-door sedan, travelling east on St. Peter Street, approaching the North Street intersection from the west. A stop sign was located 18 feet west of North Street on the south side of St. Peter Street to signal traffic approaching North Street from the west. A similar stop sign marked the crossing at the north side of St. Peter Street to signal traffic approaching North Street from the east. The approaches to the intersection are obscured by buildings located on each of its corners.

The front of the Dashnow vehicle collided with the defendant's Pontiac at the door on the right side. The Dashnow car left skid marks from the crosswalk south of St. Peter Street, extending north to a point of impact, a distance of 15 feet. From the point of collision, skid marks were traceable to the rear wheels of the Dashnow car, and indicated that the rear of that vehicle swung in a clockwise direction in an are of 180~. The Dashnow car came to rest on North Street, at the northeast segment of the intersection with the front of the vehicle headed south, in a diection opposite from that in which it entered the crossing.

The vehicle operated by the defendant left no visible skid marks. It came to rest on St. Peter Street alongside a utility pole at the northeast corner of the intersection. There were no eyewitnesses to the accident other than the occupants of the cars involved.

The plaintiff testified that she had never operated a motor vehicle prior to the accident. At the time her husband approached the intersection she was not paying much attention. She recalled that she observed rays from the headlights of a car on St. Peter Street that extended across North Street. She remembered the speed of her husband's car was reduced as they moved toward the intersection. She recalled the crash and the swirling of their car after the collision. The plaintiff was thrown from the front seat by the impact. She was extricated from beneath the Bashnow car after the accident. She testified that she made no outcry before the crash, explaining, 'I didn't have time to say anything.'

The plaintiff's husband testified that he was familiar with the intersection. He knew there were stop signs to halt traffic entering North Street from St. Peter Street. He observed the lights from the defendant's car as it moved from the left toward North Street. Dashnow was then 75 or 80 feet from the intersection. He reduced his speed. The witness testified that he didn't see the Myers vehicle itself until the defendant was 25 or 30 feet from the west crosswalk on St. Peter Street. The Dashnow vehicle had then nearly reached the crosswalk on North Street. He remembered 'hitting my brakes and then the impact----.' He felt the car go into a swinging motion. He estimated his speed at the time he reached the intersection at 20 to 25 miles an hour.

Police Officer Sprano investigated the accident and assisted in the removal of the persons injured. He testified to physical facts including a description of the location and several measurements taken at the scene. He found the defendant unconscious, lying partly on the pavement with his feet inside his car. He detected the odor of alcohol on the defendant's breath.

The defendant testified that he had come from a Christmas party at his place of employment in Essex. He admitted having had two drinks of whiskey between the hours of 7:30 and the time of collision. He explained he had one drink before dinner and the second after finishing his meal. The defendant and companion, Jerry Charland, were returning to the place of the party after having taken two guests to their homes.

His testimony continued:

'At North Street corner, I stopped and looked both ways automatically and Jerry, who was riding with me, he automatically looks and says, 'O.K. this way', because it is a blind corner and, you know, a person riding with you will automatically look. So we proceeded and started out into the middle of the street and that is all I remember. Didn't see any object coming at all. Didn't see no headlights, nothing at all. That's all I remember until I woke up in the hospital about thirty-five days later.

'Q. Now, were you unconscious all that time, were you? A. Complete coma for about twenty days and semicoma for fifteen.

'Q. And after the thirty-five day period you made out a motor vehicle accident report? A. Not immediately sir, because I was still in the hospital. I didn't even remember where I lived until just two weeks before I came out of the hospital. Couldn't remember the location of my home or anything. I didn't say anything to my wife about this when I didn't remember. I couldn't remember how many children I had or anything.'

Later, on direct examination, the defendant was permitted to read from his motor vehicle accident report, without objection. In the report it was stated that the defendant stopped for the stop sign, looked both ways on North Street and seeing no one approaching from either direction proceeded across North Street. When half way through the intersection he was struck on his right side by the Dashnow vehicle. The defendant gave his speed at the time of impact at five to seven miles an hour.

At the conclusion of all the evidence both parties moved for directed verdicts. Their respective motions were denied. Following the return of the verdict in favor of the defendant, the plaintiff filed a motion that the verdict be set aside on numerous grounds. The grounds stated included the contention that the verdict was not supported by the evidence, and the claim that the verdict was against the weight of the evidence. The first aspect of the plaintiff's motion was overruled. The trial court acted favorably on the second ground.

In appealing from this action, the defendant maintains there is an inconsistency in the ruling of the trial court that denied the plaintiff's motion for verdict and the ruling that set the defendant's verdict aside as against the weight of the evidence. Such is not the case.

The plaintiff's motion for verdict is akin to that part of his motion to set the verdict aside on the ground it was not supported by the evidence. Knight v. Willey, 120 Vt. 256, 259, 138 A.2d 596. The court's discretion was not invoked; only a question of law was raised. Laferriere v. Saliba, 119 Vt. 25, 30, 117 A.2d 380; Gould v. Gould, 110 Vt. 324, 331, 6 A.2d 24; Belock v. State Mutual Fire Insurance Co., 106 Vt. 435, 439, 175 A. 19. In denying these particular motions of the plaintiff, the court ruled as a matter of law that the evidence, viewed in the light most favorable to the defendant, tended to support a defendant's verdict. Dessereau v. Walker, 105 Vt. 99, 101, 163 A. 632; Paska v. Saunders, 103 Vt. 204, 216, 153 A. 451. In this instance the court below was concerned only with the tendency of the evidence, not with its weight. Shields v. Vermont Mutual Fire Insurance Co., 102 Vt. 224, 255, 147 A. 352.

The attack on the verdict on the ground that it was against the weight of the evidence stands differently. See Russell v. Pilger, 113 Vt. 537, 555, 37 A.2d 403; Collins v. Fogg, 110 Vt. 465, 470, 8 A.2d 684. The motion thus laid appealed to the discretion of the trial court. Anair v. Mutual Life Insurance Co., 114 Vt. 217, 236, 42 A.2d 423, 159 A.L.R. 547; Belock v. State Mutual Fire Insurance Co., supra, 106 Vt. 435, 439, 175 A. 19. The discretionary action that followed which resulted in setting aside the jury's verdict is not revisable unless an abuse of discretion is manifest. Cram v. Meagher, 113 Vt. 463, 464, 466, 35 A.2d 855.

'We will not disturb a ruling by which a verdict has been set aside, as contrary to the weight of the evidence, merely because the evidence preponderates in its favor; to justify our interference, it must appear that the evidence is so strongly in its favor as to leave no reasonable basis for a contrary verdict. We are bound to indulge every reasonable presumption in favor of the ruling, bearing in mind that the trial court was in the better position to determine the question.' Moulton, J., in the Belock case, supra, 106 Vt. at page 443, 175 A. at page 22.

The question presented is not how we might regard the result reached by the trial court. To justify the appellate court in sustaining an exception to the discretionary ruling, it must appear from the record that there was no reasonable basis for the action taken. Woodhouse v. Woodhouse, 99 Vt. 91, 153, 130...