Desmarchier v. Frost

• Decision Date: 18 January 1917
• Citation: 99 A. 782,91 Vt. 138
• Parties: DESMARCHIER v. FROST.
• Court: Vermont Supreme Court

99 A. 782

91 Vt. 138

DESMARCHIER

v. FROST.

Supreme Court of Vermont. Franklin.

Jan. 18, 1917.

Exceptions from Franklin County Court; Leighton P. Slack, Judge.

Action by Paul Desmarchier against Stephen N. Frost. Judgment for defendant, and plaintiff brings exceptions. Affirmed.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Elmer Johnson, of St. Albans, for plaintiff. C. G. Austin & Sons, of St. Albans, for defendant.

POWERS, J. The plaintiff sues for personal injuries sustained while a passenger for hire in an automobile owned and operated by the defendant. The verdict and judgment were for the defendant, and the case comes here on the plaintiff's exceptions.

The plaintiff engaged the defendant to carry him from St. Albans to Burlington. It was in November, and the ground had frozen the night before. When within a mile or two of the place of the accident, the defendant observed that the road was thawing out and getting muddy. As the car was running along on a straight, smooth, somewhat crowning piece of road, and was just on the approach to a bridge, it struck a spot of slippery clay and "slewed" into the guard rail and side of the bridge, thereby causing the injuries here sued for.

When the plaintiff was on the stand as a witness in his own behalf, his counsel asked him, "What made the car go into the bridge rail?" and he replied, "Careless." Upon the defendant's motion, this answer was stricken out, and the plaintiff excepted. This was not error. The answer was nothing more than the witness' opinion or judgment. As the court ruled, the witness could properly be allowed to describe the defendant's driving, showing what he did and what he failed to do; but the inference to be drawn therefrom was for the jury. 6 Thomp. Neg. 7747.

Walter English was in the car at the time of the accident. He was called as a witness by the plaintiff, who offered to show by him that after the accident the defendant drove differently—that he ran the car steadier, avoided the rough places, and drove safely. This was excluded, and the plaintiff excepted. The testimony was inadmissible. The only significance that could be claimed for it is that it would tend to show that he drove carelessly before the accident. But subsequent repairs or precautions are not evidence of previous negligence. Place v. Grand Trunk Ry. Co., 82 Vt. 43, 71 Atl. 836; Duggan v. Heaphy, 85 Vt. 515, 83 Atl. 726; Columbia, etc., R. R. Co. v. Hawthorne, 144 U. S. 202, 12 Sup. Ct. 591, 36 L. Ed. 405. That the defendant drove carefully after the accident had no tendency to show that he drove negligently at the time of the accident. Evidence of that fact was irrelevant. Clark's Adm'r v. Hays & Smith, 72 Vt. 138, 47 Atl. 391.

The plaintiff requested the court to charge as follows:

"In the circumstances of this case the happening of the injury to the plaintiff, as disclosed by the evidence, is prima facie evidence of negligence of the defendant, and, in the absence of any fault of the plaintiff contributing to the injury, is sufficient to entitle the plaintiff to recover, unless the defendant has shown that he was not negligent."

It seems to be admitted by counsel for the defendant that the doctrine of res ipsa loquitur was applicable to the case made by the evidence, and we therefore assume that it was. The language of the request finds support in some of the books. But, in any view of the matter, it was not necessary for the defendant to show that he was not negligent. The qualifying clause at the end vitiated the whole request and made it unsound. The doctrine of res ipsa loquitur does not affect the burden of proof, or transform the general issue into an affirmative defense. Houston v. Brush & Curtis, 66 Vt. 331, 29 Atl. 380; Holt v. Ten Broeck (Minn.) 159 N. W. 1073; Sweeney v. Erving, 228 U. S. 233, 33 Sup. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905. It merely determines the mode of proving the defendant's negligence, and prescribes what shall be prima facie evidence thereof in the class of cases to which it applies. It shifts the burden of evidence, but not of proof.

When the plaintiff took the exception now under discussion, he explained the point of his request; but here again he insisted that the court should have told...