James E. Hanley v. Town of Poultney

• Decision Date: 19 January 1927
• Citation: 135 A. 713,100 Vt. 172
• Parties: JAMES E. HANLEY v. TOWN OF POULTNEY
• Court: Vermont Supreme Court

135 A. 713

100 Vt. 172

JAMES E. HANLEY v. TOWN OF POULTNEY

Supreme Court of Vermont

January 19, 1927

November 1926.

ACTION OF TORT under G. L. 4615, to recover for injuries received by guest in automobile by reason of defective bridge on public highway, Plea, general issue. Trial by jury at the March Term, 1926, Rutland County, Graham, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant.

Lawrence Stafford & Bloomer for the defendant.

Jones & Jones for the plaintiff.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

POWERS

The plaintiff was riding as a guest in a Hudson automobile owned and operated by Joseph Harney, of Fair Haven. As they were passing over a highway bridge in the defendant town it collapsed, precipitating the car and its occupants into the stream below. The plaintiff brought this suit for damages for personal injuries then sustained, and obtained a verdict and judgment at the last March Term of Rutland county court. The defendant brings the case here on an exception to the court's refusal to comply with its seasonable request for the following instruction: "If you find that the Hudson automobile was not legally registered and not legally on the highway at the time of the accident, your verdict should be for the defendant." The only basis for such an instruction is found in the cross-examination of Harney regarding this car as follows:

"Q. How long had you had it?

A. Had it about six months. Oh, about three months, I guess, three or four months.

Q. Was it registered in your name?

A. No it wasn't. Q. You were operating a car (that) was not registered in your own name, were you?

A. Yes."

At this point counsel for the plaintiff objected on the ground of incompetency, irrelevancy, and immateriality, and the court ruled "That is excluded, unless you can show non-registration of the car had something to do with accident." To this ruling no exception was saved.

It is plain that the defendant's situation here depends largely, if not entirely, on the proper construction of this ruling. If it is to be considered as equivalent to an order to strike out all the testimony quoted, there is left no basis for the charge asked for. If, on the other hand, it is to be construed as a ruling that no further testimony on the subject of registration was to be received, or that the last question and answer was to be stricken out, there would be enough in the record to require a consideration of the defendant's request.

While it is our duty to construe this part of the record most strongly for the plaintiff, we must give it a reasonable construction, and in view of the fact that the plaintiff did not ask the court to order the testimony stricken out, and in view of the fact that the court made no such order, we think the most that the plaintiff can rightfully claim is that we are to disregard the last question and answer--to which alone objection was made. Thus construed, the testimony is sufficient to sustain the defendant's point, if well made.

The question presented was expressly excepted from the decision in Gilman v. Central Vermont Ry. Co., 93 Vt. 340, 347, 107 A. 122, 16 A. L. R. 1102, which involved the standing of an unregistered car as against one charged with having negligently injured it. And, the plaintiff being a guest and not the owner or operator, it resolves itself here into two parts: First. How was Harney affected by the fact that his car was not registered? Second. If he is or would be precluded from a recovery, how about the plaintiff who knew nothing about the fact that the car was unregistered?

It must be kept in mind that the action here resorted to is brought under a statute. Any remedy that the plaintiff has against the defendant is purely statutory. At common law no such remedy was available. Then, too, it must be remembered that the action is not, strictly speaking, predicated upon negligence, but upon the failure to comply with a statutory requirement. Graves v. Waitsfield, 81 Vt. 84, 95, 69 A. 137.

This accident occurred August 12, 1925; by the law then in force (G. L. 4669), Harney was required to license this car, and (G. L. 4716), its operation on the public highway was prohibited until it was registered.

As...