French v. Nelson

• Decision Date: 07 January 1941
• Citation: French v. Nelson, 111 Vt. 386, 17 A.2d 323 (Vt. 1941)
• Parties: MAVIS FRENCH, BY NEXT FRIEND, v. THEODORE NELSON
• Court: Vermont Supreme Court

17 A.2d 323

111 Vt. 386

MAVIS FRENCH, BY NEXT FRIEND, v. THEODORE NELSON

Supreme Court of Vermont

January 7, 1941

November Term, 1940.

Negligence (Automobile-Pedestrian).---1. Misstatement in Argument.---2. Correction of Misstatement.---3. Exception to Failure to Charge as Request to Charge---County Court Rule 31.---4. Sudden Emergency Doctrine not Applicable to Facts.---5. Sudden Peril Alters Care Required.---6. Obscured Vision Rule.---7. Operation of Automobile through Zone of Blinding Snow, "Neutralized Light" and Approaching Headlights.---8. Sudden Emergency Doctrine not Available to Violator of Obscured Vision Rule.---9. Circumstantial Evidence of Speed of Automobile.---10. Duty to Charge on General and Special Duties of Pedestrian.---11. Use of Term "Contributory Neg- ligence" not Necessary.---12. Duty to Charge on Whole Case.---13. Not Bound to Charge All Details.

1. An exception to a misstatement of evidence in argument will be sustained only when it appears that the excepting party has been harmed by it.

2. It cannot be supposed that prejudice has resulted from a mis-statement of testimony when the testimony is at once correctly stated after objections.

3. An exception taken at the conclusion of a charge for failure to instruct upon a matter not requested in writing pursuant to County Court rule 31 will be considered a tardy request to charge which the court did not take out of the rule.

4. An instruction to the jury with respect to the sudden emergency doctrine would be inappropriate regarding the conduct of one driving 25 to 35 miles an hour with lights on full beam on a level straightaway covered with hard-packed snow except near the middle of the road through a zone of "neutralized light" caused by street lights through which he could not see because of blowing snow who, when temporarily blinded by lights of an approaching car, merely slackened speed without use of brakes and suddenly discovered pedestrians upon the side of the highway upon which he knew pedestrians were accustomed to walk.

5. One confronted through no fault of his own with a sudden peril is not held to the same degree of care as when he had time for reflection.

6. An automobile operator whose vision is obscured by darkness blinding lights, smoke or fog must operate at such reduced speed that he can stop immediately if necessary.

7. Nothing in the case of a driver operating his automobile through snow being blown by a light wind and a "neutralized light" area when his vision was temporarily blinded by lights of an approaching car appears to remove his conduct from the usual operation of the obscured vision rule.

8. The sudden emergency doctrine will not avail one who may have done all he could in the last moments before an accident when too late to avoid it, if the situation he found himself in was caused by breach of the obscured vision rule.

9. The force of an impact, distance travelled with brakes applied projection of objects hit and damage to an automobile all tend to show its speed.

10. When the court in an automobile-pedestrian case instructs the jury on the necessity of negligence and freedom from contributory negligence, equal rights upon the highway, duty to act as a prudent person and right to assume driver would act as a prudent person prejudicial error does not appear, under the circumstances of this case in failure to comply with requests more specifically to charge regarding duties of pedestrians and their duty to look out for automobiles.

11. A court in instructing a jury upon the plaintiff's duty to use care is not necessarily bound to use term "contributory negligence."

12. A court is bound to charge upon all the essential elements of a case without request.

13. A court is not bound, in its charge to the jury, to make every conceivable comment on the evidence and the weight of it.

ACTION OF TORT for negligence brought by pedestrian, through her next friend, against the operator of a motor vehicle which hit her. Plea of general issue. Trial by jury by Washington County Court, March Term, 1940, Cushing, J. presiding. Verdict and judgment for the plaintiff. The defendant took exceptions.

Judgment affirmed.

Carver and Lawson for the defendant.

C. O. Granai for the plaintiff.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

The plaintiff, a girl of seventeen years of age, was walking home from school after dark on a February afternoon, along with one of her classmates, Raymond Blackburn. There had been a snow storm and the highway had been cleared, leaving a snowbank on each side. The paved portion of the road was partly covered with snow but was bare at the center; the shoulders, some two and one half to three feet wide, were covered with about an inch of snow. The plaintiff and her companion were, according to their testimony, walking in single file a very short distance apart, on the right hand shoulder and close to the snow bank. The defendant who was driving an automobile in the same direction struck them from behind, causing the injuries to the plaintiff for which she seeks recovery. In the court below the verdict was in her favor, and the cause is here upon the defendant's exceptions.

The first exception briefed is to a remark made by the plaintiff's counsel during argument. A young man named Carmenetti, who was riding on the front seat of the defendant's automobile, testified that there was frost on the windshield in front of him, but that there was a clear spot, four or five inches in diameter, through which he could see ahead. Asked about the windshield in front of the defendant, he said that there was a space about as big as would be made by a windshield wiper in action, through which a view could be had. In commenting upon this evidence counsel said that there was "no more vision for the driver than there was for the boy (Carmenetti)." Exception was taken on the ground that this statement was not in accordance with the testimony. However, counsel then stated what Carmenetti had said concerning the windshield in front of the driver, and proceeded to argue the credibility of the witness, and what he claimed could be deduced from his testimony. In order to sustain an exception to a mistatement in argument it must be made to appear that the excepting party has been harmed by it. Russ v. Good, 92 Vt. 202, 207, 102 A. 481; Button v. Knight, 95 Vt. 381, 386, 115 A. 499. And where, as here, after objection the testimony is at once correctly stated it cannot be supposed that prejudice has resulted, and no reversible error is shown. Landry v. Hubert, 100 Vt. 268, 278, 137 A. 97; and see Wittig v. Burnap, 99 Vt. 340, 342, 132 A. 39; Laferriere v. Gray, 104 Vt. 366, 370, 160 A. 270; Carleton v. Fairbanks & Co., 88 Vt. 537, 554, 93 A. 462.

The defendant excepted to the failure of the court to instruct the jury with respect to the sudden emergency doctrine, which he claimed was applicable to his conduct under the circumstances disclosed by the evidence. This exception was taken at the conclusion of the charge; no request to give the instruction had previously been made, and the record fails to disclose that it had been made an issue during the trial or had been presented to the jury in argument. Considering the exception to be in substance a request to charge, it came too late, and there was no error in the refusal to comply with it. Northern Trust Co. v. Perry, 104 Vt. 44, 49, 156 A. 906; Russ v. Good, 90 Vt. 236, 241, 97 A. 987; Clark v. Tudhope et al., 89 Vt. 246, 250, 95 A. 489. Nothing further appearing, it will be taken that the refusal was because the request was not made according to County Court rule 31, and while the trial court might, in its discretion, waive the rule and consider the request although made out of time, there is nothing before us to show that that was done in this case. Fadden v. McKinney et al., 87 Vt. 316, 329, 330, 89 A. 351.

Moreover, the charge though seasonably requested, would have been inappropriate. Russ v. Good, supra. It appeared that the road was straight for a distance of 500 to 600 feet before the place of the accident, fairly level and covered with a thin coating of hard packed snow, although nearly or quite bare in the middle where the left hand wheels of the defendant's car were running. A light wind was blowing the snow around. The defendant was driving at a rate variously given at from 25 to 35 miles an hour. The lamps of the automobile were on full beam, in good condition and threw light straight ahead on the road. There were two street lamps in front of him which, he said, "sort of neutralized " the light from his own lamps which did not shine beyond them. But although he could not see through this neutralizing light he continued at the same rate of speed, and did not sound his horn. He was familiar with the road and ...