Langevin v. Gilman, 1875

• Decision Date: 02 March 1960
• Docket Number: No. 1875,1875
• Citation: 121 Vt. 440,159 A.2d 340
• Court: Vermont Supreme Court
• Parties: Wilfred LANGEVIN v. Richard GILMAN.

Page 340

159 A.2d 340

121 Vt. 440

Wilfred LANGEVIN v. Richard GILMAN.

No. 1875.

Supreme Court of Vermont.

March 2, 1960.

Monti & Calhoun, Barre, for plaintiff.

Theriault & Joslin, Montpelier, for defendant.

Before HULBURD, C. J., HOLDEN, SHANGRAW and SMITH, JJ., and DIVOLL, Superior Judge.

SMITH, Justice.

This is an action of tort for damages brought by reason of a collision between an automobile owned and driven by the plaintiff and an automobile owned and driven by the defendant. Trial was had by jury in the Washington County Court, with verdict and judgment for the defendant. The case is here on the exceptions of the plaintiff to parts of the charge given by the trial court to the jury, and to the refusal of the court below to grant plaintiff's motion to set aside the verdict and grant a new trial.

The accident complained of happened within the limits of the City of Montpelier, on June 3, 1956. The scene of the accident was just south of the intersection of U. S. 302, the highway leading from Montpelier to Barre, with U. S. 2 and U. S. 12, which at that intersection is a single highway going from Montpelier in the general direction of East Montpelier and St. Johnsbury.

Motorists travelling from Barre toward Montpelier are required to stop, before entering this intersection, by a sign so directing erected on the highway. Traffic going in the opposite direction from Montpelier to Barre have a throughway. The approach from Montpelier to the intersection, and the scene of this accident, is on the wide, right hand curve. An ordinance of the City of Montpelier limits speed in that area to forty miles per hour.

The collision between the two cars occurred when the plaintiff, travelling from Barre in the direction of Montpelier, after stopping his car at the stop sign previously mentioned, made a left hand turn across the Montpelier-Barre highway in an attempt to enter private premises. His car was struck at about its right center by the front end of the car of the defendant, which was travelling along its route from Montpelier to Barre. At the place of the collision the car of the plaintiff was partly on the premises of Walker Motors, the private premises he was attempting to enter, on the east side of the highway, and partly in the limits of the Montpelier-Barre highway, in defendant's right lane of travel.

(1) At the conclusion of the original charge to the jury by the court below the plaintiff took an exception to the failure of the court to charge on the provisions of the Montpelier ordinance which controlled the speed limit in the area of the accident.

The lower court, in a supplementary charge, then instructed the jury that it was undisputed that the forty miles per hour speed limit, set forth in the Montpelier ordinance, was applicable in the case. The plaintiff then took an exception to this supplementary charge on the failure of the court to charge the jury that if they found a violation of this ordinance by the defendant 'that is evidence of negligence for the jury's consideration, and the question is whether the violation caused the accident.'

A further supplementary charge was then given by the court to the jury stating that the ordinance in question came under the same classification as safety rules or statutes, and should receive the same treatment. No exception was taken by the plaintiff to this second supplementary charge, nor had exception previously been taken by the plaintiff to that part of the original charge of the court relative to the effect of violation of safety rules or statutes.

The plaintiff's exception here is on the ground that the court below committed error in its charge on the effect of a violation of a safety statute. It is plaintiff's contention that, although he did not except to the last supplemental charge, under the provisions of 12 V.S.A. § 1905(3), and the case of Dodge Bros. v. Central Vermont R. Co., 92 Vt. 454, 459, 104 A. 873, he was entitled to the benefit of his original exception to the first supplemental charge.

The relevant part of 12 V.S.A. § 1905(3), to which the plaintiff refers, reads, 'Subsequent objection and exception to the same legal point shall be unnecessary * * *.' The legal point raised by the plaintiff on his exception for the first supplemental charge, was as to the evidentiary effect to be given by the jury upon proof of the violation of the ordinance. This legal point was met by the trial court's second supplemental charge that the jury should consider such violation in the same manner as violations of a safety statute, and no exception was taken to this instruction. The legal point then raised was the correctness of the instructions in the original charge on violation of a safety statute, which was a different point than the one raised by the plaintiff's prior objection. The provision of the statute relied upon did not apply.

In the case of Dodge Bros. v. Central Vermont R. Co., cited by the defendant, a different situation existed than the one here. In the Dodge case an exception had been taken to a part of an original charge whereupon a supplemental charge was given that was a reiteration of the original one. The Court held that although the defendant failed to properly renew his exception on the supplemental charge he was entitled to the benefit of his original exception because of the reiteration of the original matter to which he had excepted. Here, we have no exception to that part of the original charge upon which error is sought to be predicated. Further, if the original charge on the effect of a violation of a safety statute was in error, the fault, if any, was not called to the attention of the court below. Nor was any opportunity given the court to amplify, or correct, the instructions, if such had been thought necessary. No question shall be brought to this court except those upon which it is made to appear that the trial court has had fair opportunities to pass judgment. Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 498, 1 A.2d 817. Under these circumstances no available exception was reserved.

(2) The second exception briefed by the plaintiff to the charge of the court below is to a portion of the instructions to the jury on damages. The exception is only to that part of the charge referring to permanent injuries. This part of his instructions the lower court commenced by saying, 'If you find that the plaintiff has suffered some permanent injury * * *.' The plaintiff contends that the evidence in the case is undisputed that the plaintiff did suffer permanent injuries, and that part of the charge excepted to was prejudicial, therefore, to the plaintiff on the determination by the jury as to liability in the case. He cites the case of Donovan v. Towle, 99 Vt. 464, 472, 134 A. 588, as authority for his position.

The plaintiff has failed to point out to us any specific evidence in the partial transcript furnished this Court by which he claims such damages are shown to be undisputed, as required by Supreme Court Rule 8, par. 5. Although not so required we have searched the record before us and find no such evidence. We are bound by the record before us and it follows that this question is out of the case, and cannot be considered by us. Burlington Building & Loan Ass'n v. Ayres, 108 Vt. 504, 509, 189 A. 907; 3 Am.Jur. Appeal and Error, p. 221.

But if the evidence in the case, as to permanent damages, was as the plaintiff here has claimed, the Donovan case he has cited would have been of no help. The holding in the Donovan case is that an error in stating the rule of damages is ordinarily...