Houghton v. Leinwohl

Decision Date07 June 1977
Docket NumberNo. 163-76,163-76
PartiesArden W. HOUGHTON, Sr. v. M. Martin LEINWOHL.
CourtVermont Supreme Court

John Sartore, Paul, Frank & Collins, Burlington, for plaintiff.

Theriault & Joslin, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BILLINGS, Justice.

This legal malpractice action arose from appellant Leinwohl's failure to bring suit against the St. Johnsbury and Lamoille County Railroad on behalf of Arden W. Houghton, Sr. within the statute of limitations (three years from the date of the accident) as required under the Federal Employers Liability Act (F.E.L.A.) 45 U.S.C. § 51 et seq. A jury returned a verdict of $91,400 for the appellee Houghton. At the end of the appellee Houghton's case in chief, the appellant moved for a directed verdict. V.R.C.P. 50(a). The trial court reserved decision on this motion until after verdict. Later, it denied the motion and, at the close of all the evidence, the appellant failed to renew his motion for a directed verdict. After judgment on the verdict, the appellant did not file a motion for judgment n. o. v., V.R.C.P. 50(b), but subsequently moved for a new trial, and/or remittitur, which was denied. The bases for the motion for a directed verdict were that the plaintiff had failed to establish negligence on the part of the railroad, had failed to sustain its burden of proof in establishing a causal connection between the alleged negligence and the alleged resulting injuries, and that the trial court had erred in refusing to admit into evidence plaintiff's retirement benefits in mitigation of damages. V.R.C.P. 59. Defendant now appeals.

When a motion for a directed verdict made at the close of the plaintiff's case is denied, the motion is waived, unless renewed at the close of all of the evidence. V.R.C.P. 50 (Reporter's Notes); B. & P. Rambler & Sports Car Center v. Dawson, 126 Vt. 392, 393, 233 A.2d 50 (1967); Berry v. Whitney, 125 Vt. 383, 385, 217 A.2d 41 (1966); 2B W. Barron & A. Holtzoff, Federal Practice and Procedure § 1074, at 370 (Wright ed. 1961). This rule applies even though a decision on the motion made at the close of the plaintiff's case is reserved for later determination. Moran v. Raymond Corp., 484 F.2d 1008 (7th Cir. 1973); Hiebert Contracting Co. v. Trager, 274 F.Supp. 801 (D.Mass.1967); 5A J. Moore's Federal Practice P 50.05(1), at 2342 (2d ed. 1975). The appellant, having waived the motion for a directed verdict, did not and could not file a motion for judgment n. o. v. V.R.C.P. 50; Nauceder v. Howard, 127 Vt. 274, 278, 247 A.2d 76 (1968); 5A J. Moore's Federal Practice P 50.08, at 2357 (2d ed. 1975). As a result, the appellant is unable to test the sufficiency of the evidence as a matter of right.

Appellant filed a timely motion for a new trial, V.R.C.P. 59, and that motion is addressed to the sound discretion of the trial court. Its decision is not reviewable here except for a manifest abuse of discretion. Weeks v. Burnor, 132 Vt. 603, 609, 326 A.2d 138 (1974); Dashnow v. Myers, 121 Vt. 273, 278-79, 155 A.2d 859 (1959); Belock v. State Farm Mutual Fire Insurance Co., 106 Vt. 435, 439, 442-43, 175 A. 19 (1934); 6A J. Moore's Federal Practice P 59.08(5), at 59-153 (2d ed. 1974). The burden of showing an abuse of discretion is on the movant, and this Court, on review, will indulge every reasonable presumption in favor of the trial court's decision. Belock v. State Farm Mutual Fire Insurance Co., supra, at 443, 175 A. 19. No abuse of discretion is shown on the record before us.

Appellant contends that the appellee's injuries were not incurred within the scope of his employment. Under F.E.L.A., injuries sustained in any activity allied to the general duties of a railroad worker are deemed incurred within the scope of his employment. Erie Railroad v. Winfield, 244 U.S. 170, 37 S.Ct. 556, 61 L.Ed. 1057 (1917); Bailey v. Central Vermont Railway, 113 Vt. 433, 436, 35 A.2d 365 (1943). Here the appellee was aiding in the unloading of oil barrels used at the repair shop to which he was assigned. This is clearly within the scope of the appellee's employment.

Appellant also contends that the appellee failed to produce sufficient evidence to show negligence on the part of the railroad. The Act provides that an employer shall be liable for injuries to an employee resulting "in whole or in part" from the negligence of the railroad. 45 U.S.C. 51. What constitutes negligence under the Act is a federal question. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Bailey v. Central Vermont Railway, 113 Vt. 8, 28 A.2d 639 (1942), rev'd, 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). The proof necessary to make out a case for jury determination under the Act is considerably less than that required for common law negligence actions.

While it is still undoubtedly true that there must be some shreds of proof both of negligence and of causation, and that "speculation, conjecture and possibilities" will not be enough, there appears to be little doubt that under the statute jury verdicts for the plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action. (W. Prosser, Law of Torts P 80, at 536 (4th Ed. 1971); cf. Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 508, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).)

Our review of the record found that the evidence of negligence introduced in not providing a safe place to work fulfilled the liberal requirement of Rogers. The trial court's decision to submit the issue to the jury was without error.

Appellant further contends that there was insufficient evidence to submit the issue of medical causation to the jury. Unlike the degree of proof required in common law negligence actions or workmen's compensation cases, the right of a jury, under F.E.L.A. claims, to pass upon the question of causation is most liberally viewed.

Under the (FELA), the right...

To continue reading

Request your trial
23 cases
  • Thomas v. Bethea
    • United States
    • Maryland Court of Appeals
    • September 1, 1998
    ...145 Ill.Dec. 255, 556 N.E.2d 873 (1990); Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 419 A.2d 417 (1980); Houghton v. Leinwohl, 135 Vt. 380, 376 A.2d 733 (1977); Herston v. Whitesell, 374 So.2d 267 (Ala.1979); Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 The "case within ......
  • Csx Transp., Inc. v. Gardner
    • United States
    • Indiana Appellate Court
    • September 18, 2007
    ...of payments made to the RRA is inadmissible in FELA actions and that the trial court properly denied set off); Houghton v. Leinwohl, 135 Vt. 380, 376 A.2d 733, 737 (Vt.1977). We also note that the United States District Court for the District of Kansas, the Missouri Supreme Court, and the I......
  • Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc.
    • United States
    • Vermont Supreme Court
    • April 15, 1983
    ...Vt. 346, 349, 405 A.2d 1221, 1223 (1979); Palmisano v. Townsend, 136 Vt. 372, 375, 392 A.2d 393, 395 (1978); Houghton v. Leinwohl, 135 Vt. 380, 381-82, 376 A.2d 733, 735-36 (1977); V.R.C.P. 50(b). In determining whether the trial court abused its discretion by refusing to set aside the puni......
  • Melo v. Allstate Ins. Co.
    • United States
    • U.S. District Court — District of Vermont
    • May 26, 2011
    ...from insurance or any other third party collateral source is therefore inadmissible in mitigation of damages. Houghton v. Leinwohl, 135 Vt. 380, 376 A.2d 733, 737 (1977). Allstate argues nevertheless that evidence of payment from Melo's healthcare insurance is admissible for another purpose......
  • Request a trial to view additional results
2 books & journal articles
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 39-3, September 2013
    • Invalid date
    ...levied. Van Eps v. Johnston, 150 Vt. 324 (1988). [21] The first reported appellate decision on legal malpractice is Houghton v. Leinwohl, 135 Vt. 380 (1977). [22] In re Haddad, 106 Vt. 322, 325-326 (1934). In 1966, Elias F. Haddad moved for setting aside his judgment for disbarment in 1966 ......
  • Ruminations
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 42-2, June 2016
    • Invalid date
    ...v. Devries, 193 Vt. 574 (2013). [8] Zorn v. Smith, 189 Vt. 219(2011). [9] In re Blais, 174 Vt. 628(2002). [10] Houghton v. Leinwohl, 135 Vt. 380 (1977). [11] Puppolo v. Donovan & O'Connor, 191 Vt. 535, 539(2011). [12] Abatiell Associates, PC. v. Nicholas, unpublished, March, 2010. [13] Lefe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT