Martha M. Bucklin v. John Narkwich

• Decision Date: 07 January 1936
• Citation: 182 A. 207,108 Vt. 1
• Parties: MARTHA M. BUCKLIN v. JOHN NARKWICH
• Court: Vermont Supreme Court

182 A. 207

108 Vt. 1

MARTHA M. BUCKLIN v. JOHN NARKWICH

Supreme Court of Vermont

January 7, 1936

Special Term at Rutland, November, 1935.

Trial Court, Right to Comment on Evidence---Effect of Instructions Unduly Emphasizing Issues, Theories, or Defenses---Instructions Regarding Effect of Declarations by Parties and Witnesses---Reference to Evidence Not Constituting Undue Emphasis---Exception to Charge Too General---Waiver of Exceptions Not Briefed.

1. The trial court, in its instructions to the jury, may express its opinion regarding the weight and character of evidence if the force and effect of such evidence is ultimately left to the jury.

2. It is error for the trial court to give instructions to the jury that unduly emphasize issues, theories, or defenses either by repetition or by singling them out and making them unduly prominent; however, in applying this rule, each case stands on its own merits.

3. Court may call to attention of jury, either in main or supplemental instruction, distinction between effect to be given to declarations made out of court by parties and by witnesses.

4. Where trial court in supplemental charge referred to evidence of statements of party made out of court and claimed to be contrary to her testimony, and told the jury that it was for them to determine what she meant by such statements, whether or not they were inconsistent with her testimony and that by referring to such evidence the court did not intend to emphasize it, held that such supplemental charge was not open to objections urged nor so prejudicial as to require reversal.

5. Exception to such supplemental charge on ground that it was emphasizing of certain testimony without giving it the proper setting, held too general to require court to call attention of jury to party's physical and mental condition at time of making statements claimed to be contrary to her testimony.

6. Questions raised by exceptions, but not briefed, are waived.

ACTION OF TORT to recover for property damage and personal injuries arising out of automobile accident. Plea, general issue. Trial by jury at the March Term, 1935, Rutland County Sherman, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. See, also, 107 Vt. 168, 177 A. 198 . Affirmed.

Judgment affirmed.

Fenton Wing & Morse, Charles F. Ryan, and R. Clarke Smith for the plaintiff.

Clayton H. Kinney and Stanley L. Burns for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON and SHERBURNE, JJ.

OPINION

SLACK

The defendant's car collided with the car of plaintiff near her home on North Main Street, in the city of Rutland, causing personal injuries to plaintiff and damage to her car for which she is seeking to recover. Defendant had a verdict and judgment below and the case is here on plaintiff's exceptions.

North Main Street runs north and south. Plaintiff's house stands just east of it. North of her house is a driveway that extends east from the street, at nearly right angles, to her garage. A more detailed description of the locus appears in the 107 Vt. 168, 177 A. 198. Plaintiff was in her car intending to back it, or had backed it, from her driveway into the street when it was hit by defendant's car which was traveling north. Defendant's liability depends upon where plaintiff's car was at that time. The only direct evidence on this issue came from the parties themselves. Plaintiff testified that it was in her driveway, on her premises; defendant testified that it was partly or wholly in the street. Each was corroborated by other evidence regarding the location of the cars, and marks on and just off the street and driveway, immediately following the accident. Mr. Baker, a member of the Rutland police force whose duty it was to investigate automobile accidents that happened within the city, was a witness for defendant, and testified, in substance, that he saw plaintiff soon after the accident, and while the doctor who had been called to attend her was still present; that she talked with him and answered all questions that he asked her; that he asked her what she was doing at the time of the accident and she told him that she was "backing from the driveway"; that she did not then tell him that she was unable to answer his questions and that he would have to come again to see her; that she was excited, nervous, and so forth; that he did not spend much time with her; and that she did very little talking to him.

The doctor testified that he found plaintiff in a "dazed condition, somewhat hysterical, that is, she was laughing and crying in turns and talking as if she just wanted to talk with no reason to talk about * * *," and there was other evidence that she was then in pain and nervous and hysterical.

The court's instructions to the jury were very brief and general in terms, and made no reference to any particular witness, or his, or her, testimony. Defendant excepted to it on the ground that the court failed to instruct the jury regarding the effect to be given to the admission of the parties, and particularly the plaintiff, made out of court; and called attention to the evidence of Baker as to what plaintiff told him about backing from the driveway. Thereupon the court charged as follows:

"The court omitted to mention one element we will consider in reference to, bearing on the credibility of the witnesses, that is the reasonableness of the story which they have told. Of course that is one of the things that bears on the credit. You will take that into consideration, and when we said that plaintiff couldn't recover if the car was on the highway as Mr. Narkwich testified, we meant and tell you now that if the car was in that traveled portion of the highway, not necessarily exactly where his testimony stated, but out in the highway, why plaintiff couldn't recover. And you may also consider in connection with any of the parties anything that they said in their testimony out of court, as well as in, as bearing on what was said in court." The defendant still insisted that the court call the attention of the jury to the testimony of Baker respecting what plaintiff told him she was doing, claiming that it was inconsistent with her testimony given in court, and that the jury should take that into consideration. The court then said to the jury:

"It is claimed here by the defendant that Mrs. Bucklin said to the officer that she was backing out. Now you will judge for yourselves whether that meant she admitted she was backing into the highway or whether she was backing down on her part. You can weigh that in connection with her testimony, as to what weight you will give it."

Defendant excepted to this because it left the interpretation of what plaintiff said to Baker to the jury, and because the court had misquoted what she said. The court then added:

"Well, Gentlemen, I said something with reference to the testimony of the police officer Baker, said that Mrs. Bucklin stated to him when he was at her house in reference to what she was doing. The reporter will read the exact testimony. (Testimony read.) You will consider that with reference to all the testimony in the case bearing upon the credit of the witnesses and on the facts in the case. We are not speaking of this to emphasize it at all but it is called to our attention and you should have it."

The plaintiff excepted to the supplemental charge on the ground that:

"It is the emphasizing of certain testimony without giving it the proper setting, has no bear- ing on the question of credibility of the witnesses, it is not requested as a charge on...