Mae W. Gould v. Robert A. Gould

• Decision Date: 02 May 1939
• Parties: MAE W. GOULD v. ROBERT A. GOULD
• Court: Vermont Supreme Court

6 A.2d 24

110 Vt. 324

MAE W. GOULD v. ROBERT A. GOULD

Supreme Court of Vermont

May 2, 1939

February Term, 1939.

1. Evidence Held to Justify Finding Car Skidded---2. Skidding as Evidence of Negligence---3. Speed as Evidence of Negligence---4. Judicial Notice as to Effect of Speed on Skidding---5. Peremptory Charge of Negligence Held Not Required by Poor Visibility---6. Law Applicable Where Foreign Law Not Proved---7. Charge as to Speed Held Proper---8. Charge to Be Tested as a Whole---9. Charge as to Duty of Motorist Entering Curve Held Not Required---10. Charge as to Legal Principle Not Necessary Unless Applicable---11. Fact of Car Leaving Road as Evidence of Negligence Held Sufficiently Charged---12. Court Not Bound to Make Every Conceivable Comment on Evidence---13. Review of Motion to Set Aside Verdict and for New Trial---14. Consideration of Evidence in Reviewing Motion on Ground There Is No Supporting Evidence---15. Motion Held Properly Denied Both as Matter of Law and of Discretion---16. Searching Record---17. Claims Not Supported by References to Record.

1. In automobile negligence action, where defendant's evidence was that rear end of car "slewed around" and back wheels went over edge of bank, jury would have been justified in finding that car skidded out of road and over bank instead of running out of road as claimed by plaintiff.

2. Mere fact that automobile skids on ice is not of itself evidence of negligence on part of operator.

3. That automobile was traveling 35 miles per hour at time of skidding on ice was not in itself evidence of negligence on part of operator.

4. Court will not take judicial notice whether likelihood of automobile's skidding would have been greater or less if it had come upon ice at slower rate of speed.

5. In automobile negligence action, where evidence indicated that skidding and not poor visibility was cause of accident and it was not shown that ice on which car skidded could have been seen except for fog or that it could have been avoided if it had been seen, rule that when visibility is poor traveling at speed such that car cannot be stopped within distance that operator can see ahead constitutes negligence as matter of law was not applicable and failure of court to give peremptory instruction of negligence on part of defendant was not error.

6. In action arising out of automobile accident which occurred in New Hampshire, law of Vermont would apply when that of New Hampshire was not shown.

7. In action arising out of motor vehicle accident which occurred in New Hampshire, charge of court that jury need not consider whether speed was unlawful because there was no evidence in case as to lawful rate of speed in New Hampshire, was without error where law regarding speed was adequately explained to jury in other portions of charge.

8. Charge to jury is not to be tested piecemeal, but as a whole and if, so considered, it breathes true spirit and doctrine of the law it will be sustained, unless Supreme Court is convinced that jury were misled.

9. Failure of court in automobile negligence action to charge with respect to duty of defendant to enter curve slowly and with due care to avoid accident, to keep as far to right as possible and to proceed with due care was without error where, though car skidded on ice and went off road to left at or near curve, there was no evidence connecting skidding or leaving road with curve nor as to character of curve.

10. Whatever may be said for a proposition as an abstract principle of law, in order to make its omission from charge error it must appear to be applicable to situation disclosed by the evidence.

11. Failure of court to charge in automobile negligence action that fact that car went off road on left was in itself evidence of lack of proper control of car by defendant and of his negligence was without error where court charged that jury were entitled to take into consideration all circumstances shown by evidence, and stated that car skidded and went off road on left, and where there was no evidence that there was any attempt or occasion to stop car before it began to skid nor any opportunity to do so afterwards, so that test of control was not applicable.

12. While it is duty of court without request to charge upon all essential parts of case, it is not bound to make every conceivable comment on evidence.

13. Ground of motion to set aside verdict and grant new trial that verdict given was against weight of evidence is addressed to discretion of trial court, while ground that there is no supporting evidence raises question of law.

14. Motion to set aside verdict and grant new trial on ground that there is no supporting evidence is same in nature and substance as motion for directed verdict, and ruling of trial court in denying it must be sustained if evidence, taken in light most favorable for prevailing party, fairly and reasonably tends to support verdict.

15. In automobile negligence action arising out of accident in New Hampshire, which has no guest statute, where evidence tended to show that plaintiff was injured when car, operated by defendant in fog, skidded on ice as it approached curve and went off road on left hand side, but there was no evidence connecting either fog or curve with skidding, held that evidence taken in light most favorable for defendant sustained verdict for him against plaintiff's motion to set it aside and grant new trial as being unsupported by the evidence, and that abuse of discretion was not shown in denial of such motion on ground that verdict was against weight of evidence.

16. Supreme Court will not search record for evidence to form basis for reversal of judgment.

17. In automobile negligence action, where plaintiff stated in motion to set aside defendant's verdict and grant new trial that jury failed to follow evidence or charge but were misled by reason of interest, external prejudice and failure to comprehend evidence and charge, but did not point out anything in record indicating such failure and where plaintiff argued in support of such motion that jury must have been confused because guest law of Vermont did not apply to accident in New Hampshire, so that it was unnecessary for plaintiff, who was passenger in defendant's car, to prove gross or wilful negligence, but did not point out anything indicating such confusion, denial of motion was without error.

ACTION OF TORT to recover for personal injuries received by plaintiff in accident in New Hampshire while she was riding as passenger in defendant's automobile. Plea, the general issue. Trial by jury at the March Term, 1938, Rutland County Shields, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Asa S. Bloomer for the plaintiff.

Fenton, Wing & Morse and John A. M. Hinsman for the defendant.

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

OPINION

BUTTLES

The plaintiff seeks to recover damages for injuries received when the automobile driven by the defendant, in which the plaintiff was riding on the rear seat as a passenger, went off the road while approaching a right hand curve near Grafton, N.H., on January 8, 1937. At the commencement of the trial and after the jury was empaneled it was conceded that the State of New Hampshire did not have a guest law, so-called, and that simple and not gross negligence applied to this case. The undisputed evidence indicated that the party left Rutland, Vermont, between three and four o'clock in the afternoon of that day to drive to Portsmouth, N.H. The defendant's father was riding with him on the front seat and on the rear seat, besides the plaintiff, were her daughter-in-law and her daughter, who was seated in the middle. The accident happened about 5:30 in the afternoon and at that time and prior thereto the weather was rainy and foggy. The defendant was driving at a speed of about thirty-five miles per hour.

A jury trial was had with verdict and judgment for the defendant and plaintiff comes to this Court on exception to the overruling by the trial court of her motion to set aside the verdict and grant a new trial and on four exceptions to failure to charge. No other motions and no requests to charge were made by the plaintiff. We first consider the plaintiff's exceptions to the charge as given.

Plaintiff excepted to the "failure of the court to charge the law of the case to the effect that on the evidence in the case the defendant was negligent as a matter of law and reasonable minds could not differ on the issue of negligence." In briefing this exception plaintiff merely refers to what was said in her brief in support of her motion to set aside the verdict. Her argument there, so far as applicable to this exception, amounts to this: The evidence shows that there was a dense fog, and the defendant proceeded at thirty-five miles per hour through a curve and ran out of the road on the left side of the road; therefore the defendant was negligent as a matter of law. The plaintiff's statement is not quite an accurate statement of the facts shown by the undisputed evidence. Defendant's evidence regarding the occurrence of the accident as contained in his statement written by him on plaintiff's exhibit No. 1 is as follows: "Was Driving about 35 mile a hour as we approached the curve the Rear End Slewed around. I cut wheels to avoid Going over Bank But was to Late the Back Wheels were on the Edge." From this it is apparent that the jury would be warranted in finding that the car skidded out of the road and over the bank, instead of running out of the road as stated by the plaintiff. Plaintiff also says that the car "proceeded through the curve," but the only evidence on...