J. A. Healy, Admr. v. James Moore

• Citation: 187 A. 679,108 Vt. 324
• Parties: J. A. HEALY, ADMR. v. JAMES MOORE
• Decision Date: 06 October 1936
• Court: Vermont Supreme Court

187 A. 679

108 Vt. 324

J. A. HEALY, ADMR. v. JAMES MOORE

Supreme Court of Vermont

October 6, 1936

January Term, 1936.

Automobiles---Action for Death of Pedestrian---Testimony Horn Not Heard---Location of Articles Worn or Carried as Evidence of Point of Contact---Testimony of Nonexpert as to Force Required to Bend Automobile Parts---Presumption Ruling Made in Exercise of Discretionary Control over Cross-Examination---Broken Emblem from Automobile as Evidence of Force of Collision---Ground of Objection to Admission of Evidence Not Stated in Trial Court---Error in Striking out Part of Answer Not Prejudicial Because of Opportunity to Explain Conduct on Redirect---Improper Argument Withdrawn without Instruction to Disregard It Not Prejudicial---Duty of Motorist to Sound Warning When Approaching Pedestrian---Instruction Whether Duty to Sound Warning Existed Was for Jury---Ground of Objection to Instruction Not Stated Below---Right of Pedestrian to Walk Along Side of Road---Instruction as to Application of Sudden Emergency Rule to Conduct of Pedestrian---Damages to Car and Injuries to Pedestrians etc., as Evidence of Speed---Sudden Emergency Rule Stated---Instruction as to Application of Sudden Emergency Rule to Conduct of Motorist---Charge Held Not to Submit to Jury Position of Pedestrians in Road---Instruction as to Duty of Motorist When Aware Pedestrians Ignorant of His Approach---Instruction as to Failure of Pedestrians to Look When Crossing Street as Proximate Cause---Instruction as to Effect of Quietness of Automobile on Duty of Operator---Lack of Instruction as to Corresponding Duty of Pedestrian Covered Elsewhere in Charge---Due Care as to Speed When Automobile Operated in Dark---Ground of Objection to Instruction Not Stated in Trial Court---Inadequate Briefing of Ground of Exception to Instruction---Instruction Submitting Question of Duty of Motorist Approaching Pedestrian to Sound Warning---Fail- ure to Instruct No Duty to Sound Warning Not Error in Circumstances Shown---Portion of Charge Stating Claim of Party Not Submission of Res Ipsa Loquitur---Exception to Charge Must Be Explicit---Negligence, Contributory Negligence, and Proximate Cause Shown By Circumstantial Evidence---Instruction Submitting Contributory Negligence Issue Held Proper in Circumstances---Ground of Exception Not Sufficiently Explicit---Motion to Set Aside Verdict---Grounds Not Briefed---Grounds In Discretion of Trial Court and Not Revisable in Absence of Abuse---Ruling Revisable on Ground in Effect That Verdict Was without Evidentiary Support---Evidence Taken in Light Most Favorable to Prevailing Party---Evidence Held Sufficient to Support Verdict---Denial of Motion to Set Aside Held Not Abuse of Discretion---Doubt as to Construction and Weight of Evidence Resolved in Favor of Verdict---Close Jail Certificate---Extent to Which Ruling on Motion Revisable---Examination of Evidence Where No Finding of Facts---Burden on Plaintiff to Show Cause for Issuance of Certificate---Independent Examination of Evidence on Motion for Close Jail Certificate---No Inference from Verdict as to Wilfulness and Malice---P. L. 2195, "Wilful and Malicious Act or Neglect" Construed---Omission as Wilful and Malicious---Intent to Cause Injurious Result Not Necessary---Failure of Motorist Approaching Pedestrian to Sound Warning as Basis for Close Jail Certificate---Certificate Granted by Supreme Court.

1. In action for damages resulting from death of pedestrian struck by automobile operated by defendant, admission of testimony by person near scene of accident that she did not hear sound of horn, if error, held harmless where defendant subsequently admitted on stand that he did not sound horn.

2. In such action, small articles worn or carried by the two pedestrians killed in the accident and evidence as to their location when found on or near the highway held admissible as tending to show that the accident occurred at least as far in the direction from which the defendant was coming as the places where they were found, over objection that evidence had no tendency to show just where in fact the contact occurred, arguments that articles were easily moved, that a number of people gathered at the scene of the accident, and that all but one were not found until the next morning going only to the weight of the evidence.

3. In such action, exclusion of evidence sought to be elicited on cross-examination of automobile repair man, who had not been qualified as an expert, as to the amount of force required to bend parts of automobile which he had testified were bent held without error, the ruling being within the discretionary control of the court over cross-examination.

4. The contrary not appearing, a ruling within the discretionary control of the court over cross-examination will be taken to have been made in the exercise of such discretion.

5. In such action, admission of parts of emblem attached to defendant's automobile and found in the roadway, offered as tending to show force of collision and that accident happened as far back as location of rearmost part, held without error.

6. In such action, where coat worn by one of decedents, offered as tending to show by its condition the force of the collision was admitted in evidence over objection that it had no such tendency, objection not called to attention of trial court that condition of coat after accident had not been shown to be different from its condition before, held unavailing.

7. In such action, where effect of striking out of part of answer of defendant during cross-examination was to leave rest of answer open to interpretation that it modified his previous testimony that he applied his brakes with force when he saw pedestrians move into the roadway, held that part of answer stricken out was responsive but error was not such as to cause reversal, since there was opportunity for defendant fully to explain his conduct on redirect examination.

8. In such action, where argument as to absence of evidence with respect to matter called to attention of jury during view of scene of accident was improper and counsel withdrew it, but there was no specific instruction to disregard it, held under circumstances that prejudice was not made to appear.

9. While there is no specific statutory requirement that operator of motor vehicle approaching pedestrians on highway shall sound a signal, under P. L. 5149 forbidding careless and negligent operation there is an obligation to give such signal if in the exercise of ordinary prudence it is necessary to warn pedestrians of approaching automobile.

10. In action for damages resulting from death of pedestrian struck by automobile operated by defendant, where court charged it was for jury to say whether in the circumstances it was act of careful and prudent person to approach decedents without warning, exception on ground that there was no obligation in law to sound a signal held unavailing.

11. Point made in brief but not raised in court below that there was no evidence to warrant particular instruction is not for consideration in Supreme Court.

12. Where there is no sidewalk, it is proper for pedestrians to walk along side of road, although even if they are not properly there, operator of approaching automobile is not relieved of duty of due care.

13. In action for damages resulting from death of pedestrian struck by automobile operated by defendant, charge as to application to conduct of pedestrians of "sudden emergency" rule, excepted to on ground that defendant was not responsible for their doing what they did and that there would have been no accident if they had not been in place in road where they should not have been, held proper in view of defendant's testimony respecting his operation of car, of evidence regarding damage to car, injuries to pedestrians, etc., as showing force of collision, and of what jury might infer therefrom as to lack of negligence on part of pedestrians in failing to notice approach of automobile sooner and their lack of time for reflection in attempting to escape the sudden danger.

14. In such action, held that evidence as to damage to car, nature of injuries to pedestrians, and distance they were carried on car and then projected ahead, all tended to show the force of the collision and the speed of the car.

15. A prudent person attempting to escape a sudden danger and having no time for reflection may fail to use his best judgment, omit some precaution, or not use the best available method of meeting the danger, and still not be negligent.

16. In such action, instruction as to application to conduct of defendant of "sudden emergency" rule, excepted to on ground that defendant was driving to left of pedestrians and would have avoided them if they had remained where they were, held erroneous but not prejudicial, since if defendant were negligent in approaching pedestrians without warning the doctrine could not be invoked in his favor, and if he were driving carefully and they negli-

gently stepped in front of him so that he had no chance to exercise a judgment as to his course of action the doctrine was inapplicable to the situation.

17. In such action, where all the evidence tended to show that pedestrians were on the side of the road until just before the accident, charge held not to submit to jury as claimed in exception question as to where they were walking until they turned toward the middle of the road.

18. In such action, instruction that if defendant saw from something they did or the way they acted that pedestrians did not know he was approaching behind them, or were careless, from that time his conduct must be judged in the light of what he saw held proper as against exception on ground that there was no evidence to...