Gregoire v. Willett

• Decision Date: 03 October 1939
• Parties: ERNEST L. GREGOIRE v. ARTHUR WILLETT
• Court: Vermont Supreme Court

8 A.2d 660

110 Vt. 459

ERNEST L. GREGOIRE v. ARTHUR WILLETT

Supreme Court of Vermont

October 3, 1939

May Term, 1939.

Automobile Negligence Action---Defendant Entering Highway from Driveway---1. Permitting Plaintiff to Testify He Did All He Could to Avoid Accident---2. Error Not Shown to Have Been Prejudicial---3. Exceptions to Refusal to Direct Verdict for Defendant Waived---4. Viewing Evidence in Considering Exception to Refusal to Direct Verdict for Defendant---5. Evidence Held to Make Jury Question on Defendant's Negligence---6. On Plaintiff's Freedom from Contributory Negligence---7. Briefing Exceptions to Instructions to Jury.

1. Permitting the plaintiff in an automobile accident case to answer question as to whether he did all he could to avoid the accident, if error, was harmless because not shown to be prejudicial where he had already testified in detail as to what he did.

2. Error, if any, in admission of evidence did not effect a reversal where it was not shown to have been prejudicial.

3. Exceptions by defendant to refusal of trial court to grant his motion for a directed verdict made at the close of the plaintiff's case were waived when the defendant proceeded with his case and hence were not for consideration in Supreme Court.

4. In considering an exception to the refusal of the trial court to grant the defendant's motion for a directed verdict the Supreme Court was obliged to view the evidence in the light most favorable to the plaintiff and draw such inferences as might reasonably be drawn by the jury from the facts appearing in evidence.

5. The defendant in an automobile accident case was not entitled to a directed verdict on the ground that there was no evidence showing negligence on his part which contributed to the accident as a proximate cause where there was evidence tending to show that he drove his car from a private driveway onto a highway and collided with the plaintiff's car which was proceeding along the highway from his right at about 25 miles per hour, and that he did not see the plaintiff's car until he hit it though his view to the right was not obstructed.

6. The evidence in an automobile negligence case was sufficient to make a jury question on the plaintiff's freedom from contributory negligence, so that defendant's motion for a directed verdict was properly overruled, when it tended to show that the plaintiff, driving along a highway at 20 to 25 miles per hour, saw the defendant about to enter the highway from a driveway when he was 20 to 25 feet away from it, took his foot off the accelerator and watched the defendant until he saw the latter start to drive across the road, then applied his brakes hard and pulled to his right.

7. Exceptions to a trial court's instructions to the jury were waived when briefed only by stating the grounds upon which they were taken.

ACTION OF TORT to recover for personal injuries received in a motor vehicle accident. Plea, the general issue. Trial by jury at the September Term, 1938, Washington County, Shields, J presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Fred E. Gleason for the defendant.

C O. Granai for the plaintiff.

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

OPINION

STURTEVANT

In this action, plaintiff seeks to recover for personal injuries received by him in an automobile accident, which accident, as plaintiff claims, resulted solely from defendant's negligence. Below, a verdict was returned for plaintiff and judgment was rendered thereon. The case is here upon defendant's exceptions.

During the trial the plaintiff was asked the following question by his counsel: "Did you do all that you could do at that time to avoid this accident?" The plaintiff was allowed to answer this question over defendant's objection, the answer being as follows: "Yes, sir, I did everything that could be done." The first question briefed by defendant is his exception to the ruling of the court allowing this answer to be given. At the time this question was asked the plaintiff had testified in detail as to what he saw and did just before the accident.

Defendant argues that there is a clear distinction between permitting the statement whether the witness knows of anything he could have done which he did not do to avoid the accident and permitting him after he has stated what he did or did not do to state whether he did all that he could do to avoid the accident. It is contended that to permit the latter was to allow the witness to state his opinion as to his own conduct and invaded the province of the jury and so under the circumstances of the case it was error to allow the answer. However, we do not need to give further consideration to this contention because if there was error here, a question which we do not decide, such error appears to have been harmless because at the time this question was answered by plaintiff he had already told in detail just what he did as to turning to his right and as to applying his brakes. Since the jury had before them a detailed account of plaintiff's conduct just before and at the time of the accident they could have failed to find him free from contributory negligence unless they believed that the evidence fairly showed him to be so. Under the circumstances here it is not shown that the error, if any, was prejudicial and therefore it does not effect a reversal. St. Albans Granite Co. v. Elwell & Co., 88 Vt. 479, 483, 92 A. 974; Wood v. James, 93 Vt. 36, 43, 106 A. 566; Higgins, Admr. v. Metzger, 101 Vt. 285, 296, 143 A. 394.

The next exceptions briefed by defendant under subdivision II relate to the refusal of the court to grant his motion for a directed verdict at the close of plaintiff's case. However, defendant, after saving these exceptions, proceeded with his case and thereby waived them and therefore we give no further consideration to same. W. H. Hobbs & Son v. Grand Trunk Ry. Co., 93 Vt. 392, 397, 108 A. 199; Grapes v. Rocque, 97 Vt. 531, 536, 124 A. 596; Campbell v. Bryant, 98 Vt. 486, 488, 129 A. 299; Bean v. Colton, 99 Vt. 45, 47, 130 A. 580.

The exception briefed by defendant under subdivision III relates to the refusal of the court to grant his motion for a directed verdict made at the close of all the evidence. This motion was on two grounds, viz., (1) that the evidence does not show the plaintiff free from contributory negligence, and (2) that there is no evidence warranting a finding by the jury that the defendant was guilty of any negligence which contributed to the accident as a proximate cause of it.

In considering this motion we must consider the evidence in the light most favorable to the plaintiff, and we must also give consideration to such inferences as might reasonably be drawn by the jury from the facts appearing in evidence. Pacific Lumber Agency v. National Aircraft Materials Corp., 108 Vt. 10, 15, 182 A. 192; Picknell v. Bean, 99 Vt. 39, 41, 130 A. 578; Partridge v. Cole, 96 Vt. 281, 285, 119 A. 398, 32 A.L.R. 854.

So construed, the evidence shows the following facts: Between the hours of two and three o'clock on the afternoon of October 20, 1937, plaintiff was driving his automobile in a southerly direction on River Street in the city of Montpelier on his way to Barre. At all times material here it was raining hard. The road was nearly straight and nearly level and the surface was concrete, and this hard surface was 18 feet wide, made up of two strips, each 9 feet wide with a dividing line marking the center. On the easterly side of this highway were located a shed and office building belonging to the Eureka Granite Co. Just...