Helen O. Russell, Adm'x v. Martin Pilger Et Als

• Citation: 37 A.2d 403,113 Vt. 537
• Parties: HELEN O. RUSSELL, ADM'X v. MARTIN PILGER ET ALS
• Decision Date: 02 May 1944
• Court: Vermont Supreme Court

37 A.2d 403

113 Vt. 537

HELEN O. RUSSELL, ADM'X v. MARTIN PILGER ET ALS

Supreme Court of Vermont

May 2, 1944

October Term, 1943.

Duties of Trial Court on Motion to Set Aside Verdict, and Respective Provinces of Trial Court and Appellate Court in connection therewith.

1. Requests to charge abstract propositions of law may properly be ignored by the trial court.

2. Failure to comply with a request is not error when it appears that the requested instruction is not warranted by the evidence.

3. When the trial court has in its charge correctly defined proximate cause, the fact that the court couples the word "logical" with the words "natural" and "proximate", if error, is harmless.

4. When exception is taken to a certain argument, and without ruling thereon the court takes certain steps to clarify the situation, if the argument then continues without insistence upon the original exception, such exception is thereby waived.

5. In any matter in which the trial court is properly called upon to exercise its discretion, it is error to withhold the exercise of discretion.

6. It is error for the trial court to rule as a matter of law upon a question which requires discretionary action.

7. Where a defendant has moved for a directed verdict and has excepted to the court's denial of the motion, any subsequent error in the case against the plaintiff is harmless if it appears that such motion should have been granted, and the rule is to be applied even though the appeal is solely on the plaintiff's exceptions.

8. Where a police officer is riding on a truck for the purpose of protecting the truck, its contents and the owner, he is not a gratuitous guest under P. L. 5113.

9. Held, that negligence of operator of truck was, upon the evidence, a jury question.

10. A peace officer is bound to assume such risks as are necessary to the carrying out of his duties. If there is substantial evidence in the case tending to show that it was reasonably necessary for such officer to ride on the running board of a truck in the performance of his duties then the questions of his contributory negligence and assumption of the risk in so riding are for the jury.

11. A verdict may be set aside by the trial court if it appears to have resulted from passion or prejudice or corruption or from a disregard of the evidence.

12. The expression "against the weight of the evidence" means the same as "against the evidence" or "contrary to the evidence."

13. It is the duty of a trial court, in the exercise of a wise judicial discretion, to set aside a verdict when the countervailing evidence so preponderates over that which tends to support the verdict that it would be an abuse of discretion to refuse to do so; it would be such an abuse of discretion when the judgment of the trial court tells it that the verdict is clearly wrong, that for some reason the jury have disregarded or found against the reasonable evidence and thus by their verdict have brought about an injustice.

14. When the evidence is such that the jury could fairly and reasonably have found either way the trial court has no right to set the verdict aside. A verdict is not lightly to be disregarded and should only be set-aside when the judgment of the trial court tells it that to allow the verdict to stand would bring about an injustice.

15. When the disposition of a discretionary ground of a motion to set aside a verdict depends upon the evidence, the trial court should consider the evidence in the view most favorable to the verdict.

16. The rules which apply in the trial court in passing on a motion to set aside a verdict on a discretionary ground are not the same as those which apply in the Supreme Court on determining the correctness of the ruling below.

17. The exercise of discretion in passing on the question of the weight of the evidence is for the trial court alone, as the appellate court has no discretionary power in the matter.

18. When a trial court, exercising its discretion, has set aside a verdict as being contrary to the evidence, such ruling of the trial court will not be disturbed on appeal unless it appears that there is no evidence in the case to afford a reasonable basis for a contrary verdict; in determining whether there is such a basis the evidence must be viewed on appeal, not in the light favorable to the verdict but in the light favorable to the ruling below.

19. Even though a party's evidence is such as to require submission of the issue to the jury, it may be so outweighed by the countervailing evidence that, in the exercise of its discretion, the trial court should not hesitate to set aside a verdict in his favor.

20. In considering a motion to set aside a verdict, improper argument, though not excepted to at the time, has evidentiary value the effect of which it is the duty of the trial court to consider, along with all the other circumstances of the trial.

21. Where errors in the trial court are confined to matters occurring subsequent to the rendition of a verdict, the cause will be remanded by the appellate court only for the correction of such errors. [Copyrighted Material Omitted]

TRESPASS AND NEGLIGENCE. Trial by jury at the December, 1941, Term of Addison County Court, Cushing, J., presiding. Verdict and judgment for the defendants.

Judgment reversed, and cause remanded for the correction of errors subsequent to the rendition of the verdict.

William S. Burrage and Frederic Parker for the plaintiff.

Lawrence & O'Brien for the defendants Pilger, Sullivan, Sullivan and O'Donnell.

A. Pearley Feen and Wayne C. Bosworth for the defendant Derrick.

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

OPINION

JEFFORDS

In the early part of July, 1941, a so-called milk strike was taking place in Addison County. Two of the milk producers called upon the sheriff of the county for protection in getting their milk to the plants in Vergennes to which it was to be taken. As a result of this appeal the sheriff ordered Ray Russell, a deputy sheriff, to give the requested protection. On the morning of July 3rd Russell with one of the producers went to the home of Sanford Derrick, one of the defendants in this case, who was the owner of a truck which was being used at the time for hauling milk to the plants. Russell was wearing his badge at the time. He was introduced to Derrick as a deputy sheriff and Derrick was told by Russell that he was there to accompany Derrick in the latter's truck that morning. Derrick was aware of the milk strike and that as a result of it some milk had been stopped from getting to the plants. He was also aware of the fact that there might be some trouble getting to the plants that morning with the milk and he knew that Russell was there to protect the milk.

The truck left Derrick's home with Derrick, Russell and three other men in it. Milk in cans was picked up along the way and when the truck had received its full load Derrick took over the driving with Russell sitting on the seat with him. At a point near Vergennes the road was blocked by a parked truck. William Sullivan, one of the defendants, who was near this truck stepped out on the highway and flagged the Derrick truck which came to a stop. In addition to Sullivan there were 15 or 20 people gathered around the parked truck. Russell got out of the Derrick truck and after a few questions ordered the other truck moved. This was done and the Derrick truck started on its way. Soon after it started the defendants Martin Pilger, George and William Sullivan and Donald O'Donnell climbed over the tail board and on the truck. A. scuffle took place between some of them and the two men who had been riding in the rear of the truck and some of the defendants threw milk cans from the truck. A. milk producer who had not been riding in the truck got on it and joined in the scuffle.

Russell apparently got on the running board of the truck when it started, or soon after, and was on it while part at least of this melee was taking place. During the time the truck was in motion he fell from it for a cause which is here in dispute. He received injuries which soon resulted in death.

The plaintiff brought this suit for damages claiming that the death was caused by a combination of negligence on the part of defendant Derrick in the operation of the truck and an assault and battery on Russell by the other defendants. The jury returned a verdict for all the defendants and the case is here on the plaintiff's exceptions.

We will first consider the exceptions which relate to errors claimed to have been made during trial. The first of these is for failure of the court to charge a part of the plaintiff's request number 4. This part of the request, and in fact the whole of the same, is wholly abstract, and the plaintiff was not entitled to a literal compliance therewith, for charging abstract propositions of law is condemned. Johnson v. Moore, 109 Vt. 282, 287, 196 A. 246; Green v. Stockwell, 87 Vt. 459, 464, 89 A. 870; State v. McDonnell, 32 Vt. 491, 536. Moreover, the whole request was substantially complied with by the court's statement of the subject matter thereof as related to the facts and circumstances of the case.

The only ground advanced here, or below, for error in the court's failure to grant plaintiff's eleventh request is, in effect, that it pointed out to the court a claimed error in the charge and a method of correcting it. This latter error is said to be in the court's confining the question of Derrick's negligence in the matter of the operation of his truck to his conduct in this respect at the very spot where Russell received his injury. An exception to the court's charge was taken on the ground that by the charge the jury were so limited...