Elmer O. Clark v. Fred Demars

• Decision Date: 28 June 1929
• Citation: Elmer O. Clark v. Fred Demars, 146 A. 812, 102 Vt. 147 (Vt. 1929)
• Parties: ELMER O. CLARK v. FRED DEMARS ET AL
• Court: Vermont Supreme Court

146 A. 812

102 Vt. 147

ELMER O. CLARK v. FRED DEMARS ET AL

Supreme Court of Vermont

June 28, 1929

May Term, 1929.

Sufficiency of Bill of Exceptions To Raise Question re Instructions Although No Transcript Furnished---Damages---Insufficiency of Evidence To Warrant Submission Question of Future Damages---Presumption of Innocence in Civil Case---Application to Alleged Violation Acts 1925, No. 70 68, par.XIV, and 86---Measure of Proof Required To Overcome Presumption of Innocence in Civil Case---Automobiles---"Proceeding" within Statute Requiring Sounding of Signal when Automobile Passes Another Car Proceeding in Same Direction.

1.In ACTION OF TORT by telephone lineman to recover damages for personal injuries received by being struck by an automobile where bill of exceptions stated that tendency of evidence of both parties with respect to injuries was fully set forth therein, held that exception to instruction, that jury might allow as an element of damages what plaintiff"will have lost in future" by reason of such injuries and such sum or sums as "he will be required to expend in future in being cured of these injuries," on ground that such instruction permitted jury to speculate as to future damages was for consideration, although no transcript had been furnished.

2.In such action, where nothing further appeared than that plaintiff worked for same employer and received same wages before and after accident, and that he was not able to do as much work as before his injuries, in that he was unable to climb poles, and found it difficult to do other species of heavy work, so that since accident his work was of lighter sort, and there was no evidence on question of future disbursements for cure of injuries, held that there was an inadequate and insufficient basis for submitting to jury, as an element of damages question of diminution of future earning capacity and of future disbursements for cure of injuries.

3.When, in trial of civil case, person is charged with crime, there is a legal presumption that he is innocent, which is evidence in his favor, and is to be considered by jury in connection with other evidence in case; and failure to so instruct jury was prejudicial error, whether court was requested to give instruction or not.

4.In action of tort by telephone lineman to recover damages for personal injuries received by being struck by an automobile, where declaration charged, and plaintiff's evidence tended to show, that accident was proximate result of negligence on part of defendant in operating automobile at a dangerous and reckless speed, and in failing to sound horn or otherwise signal before passing truck beside which plaintiff was standing in violation of Acts of 1925, No. 70, 68, par.XIV, and 86, which constituted penal offense, held that failure of court to charge that there was a legal presumption that defendant was innocent, which was to be considered as evidence, was prejudicial error.

5.In such action, refusal of court to instruct jury that presumption of innocence continued as a piece of evidence in defendant's favor until they were convinced of contrary beyond a reasonable doubt, held without error, since such presumption, although evidence in defendant's favor and standing with him until overcome by other evidence, in a civil case need be overcome only by a preponderance of evidence, and not beyond a reasonable doubt.

6.When automobile truck, from which telephone lineman had just alighted when he was struck and injured by defendant's automobile, had only momentarily halted to permit plaintiff to alight, and was about to start again, held that such truck was "proceeding" within meaning of term as used in Acts of 1925, No. 70, 68, par.XIV, requiring signal to be given or horn blown when automobile passes another car proceeding in same direction.

ACTION OF TORT for negligence resulting in personal injuries.Plea, general issue.Trial by jury at the June Term, 1928, Windsor County, Sherman, J., presiding.Verdict for defendant, Fred Demars, and for plaintiff against defendantErnest Demars.Judgments on verdicts.DefendantErnest Demars excepted.The opinion states the case.Reversed and remanded.

Judgment reversed, and cause remanded.

Sumner E. Darling, Jr., and Searles, Graves & Waterman, for the defendantErnest Demars.

Raymond Trainor for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

MOULTON

The plaintiff, who was a telephone lineman, had just alighted from an automobile truck, which had stopped in the highway, and was run into and injured by an automobile, owned by the defendantFred Demars, and operated by his son, the defendantErnest Demars, without his father's permission or knowledge.The automobile was proceeding in the same direction as the truck.The plaintiff brought suit, and after a trial by jury, a verdict was rendered in favor of Fred Demars, and against Ernest Demars.The latter brings exceptions.The only exceptions briefed arise from the charge to the jury.The first is to the instruction that, in the event of a verdict for the plaintiff, the jury might allow, as an element of damages, "such sum as from the evidence you find he(the plaintiff) will have lost in the future by reason of any injuries which occurred from the accident * * * * * * and such sum or sums as you will find from the evidence in the case, if any, that he will be required to expend in the future in being cured of these injuries."

It is claimed that this instruction permitted the jury to speculate as to the future damages.No transcript has been furnished us, but the bill of exceptions states that the tendency of the evidence of both parties with respect to the injuries is fully set forth therein.Under these circumstances, the exception is for consideration.Hill v Scott, 101 Vt. 356, 143 A. 276, 278.The bill of exceptions states that the plaintiff worked for the same employer and received the same wages before and after the accident, and that his evidence...