French v. Nelson

• Decision Date: 07 January 1941
• Docket Number: No. 1682.,1682.
• Citation: 17 A.2d 323
• Parties: FRENCH v. NELSON.
• Court: Vermont Supreme Court

17 A.2d 323

FRENCH

v. NELSON.

No. 1682.

Supreme Court of Vermont. Washington.

Jan. 7, 1941.

Exceptions from Washington County Court; Stephen S. Cushing, Judge.

Action by Mavis French, by next friend, against Theodore Nelson, for injuries sustained when struck by an automobile driven by defendant. To review a verdict for plaintiff, the defendant brings exceptions.

Affirmed.

Argued before MOULTON, C.J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

C. O. Granai, of Barre, for plaintiff.

J. Ward Carver, of Barre, for defendant.

MOULTON, Chief Justice.

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 misstatement 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, 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, 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 knew that people were accustomed to walk along it. At a point approximately 50 feet before the place of the accident he was temporarily blinded by the lights of a car coming in the opposite direction, and, when it had passed, he saw the plaintiff and her companion for the first time, about three feet in front of him. He testified that they seemed to be walking side by side, and in the road about nine feet from the right hand snow bank. He turned to the left and applied his brakes, the wheels locked, and the car skidded first to the left, then to the right and straight ahead, coming to rest with the right front fender in the right hand snow bank. Raymond Blackburn was struck in the back and carried along on the right front fender for a distance which the defendant estimated at eighteen to twenty feet, and a police officer who made immediate investigation and measurements put at twenty paces or about 60 feet. The car came to stop at a point 53 feet beyond the spot where the boy lay when he fell from the car. The fender was dented and the right head lamp was bent back in its bracket and the lens broken. The plaintiff, who weighed 198 pounds, was struck by the fender and running board and thrown into the snow to the right of the road. When the lights of the approaching car shone in his eyes the defendant did not apply his brakes, but merely stopped supplying gasoline to the engine, which reduced his speed somewhat At that time, he said, he was proceeding at 24 or 25...