Merrihew v. Goodspeed

• Decision Date: 01 October 1929
• Citation: 147 A. 346,102 Vt. 206
• Parties: HARVEY S. MERRIHEW'S ADMR. v. FRANK E. GOODSPEED
• Court: Vermont Supreme Court

147 A. 346

102 Vt. 206

HARVEY S. MERRIHEW'S ADMR. v. FRANK E. GOODSPEED

Supreme Court of Vermont

October 1, 1929

February Term, 1929.

Negligence---Evidence as to Whether Defendant Had Left Anything Undone To Prevent Accident---Harmless Error---Cross-examination---Extent of Right To Cross-examine Party---Scope and Extent as Resting in Court's Discretion---Indefiniteness of Question as Warranting Exclusion as Matter of Discretion---Question Not Raised in Lower Court---Trial---Necessity that Instructions Be Applicable to Evidence---Inferences Based on Other Inferences---Exception to Failure To Charge Merely by Reference to Number of Request---General Exception---Refusal of Request for Instructions Substantially as Already Given---Contributory Negligence---Failure in Supplemental Charge To Repeat Original Instructions as to Proximate Cause.

1. In ACTION OF TORT to recover damages for death of plaintiff's intestate, a child 5 1/2 years old, resulting from injuries received by being struck by an automobile owned and operated by defendant, where defendant in testifying fully described the circumstances surrounding the accident as he saw it, and his evidence tended to show that child was hidden from sight by another car backing into the highway and ran suddenly in front of defendant's car as he was passing other car and too close to enable him to avoid accident, held that there was no error in permitting defendant in answer to question to state that he knew of nothing he could have done to avoid hitting the child, it not being an expression of opinion as to whether proper degree of care had been exercised, and it being material to know what defendant did, and what, if anything he left undone regarding management and operation of his automobile.

2. In such action, where person riding in defendant's automobile at time plaintiff's intestate was injured had described manner in which defendant was driving, his control of car, and surrounding circumstances, including suddenness with which plaintiff's intestate had appeared in road and had testified that she was familiar with operation of an automobile, held that sufficient foundation had been laid to permit witness to state that she knew of nothing more defendant could have done than he did do to avoid accident.

3. In such action, exclusion on cross-examination of defendant of questions as to whether defendant could have avoided accident had he seen plaintiff's intestate a certain number of feet from place of accident, by going either to left or right of child, or otherwise, if error, held harmless, where by reason of testimony already given plaintiff had substantial benefit of excluded testimony.

4. Where witness is party, right to cross-examination extends to any material matter, whether covered by direct examination or not.

5. Scope and extent of cross-examination rests largely in sound discretion of trial court, and its ruling thereon is not revisable in absence of an abuse thereof.

6. In action of tort to recover damages for death of plaintiff's intestate, a child of 5 1/2 years, resulting from injuries received by being struck by an automobile owned and operated by defendant, distance mentioned in question asked defendant on cross-examination, as to whether when he saw child to right of center of road and defendant was back there "a few feet," he could have turned and not hit child, held so indefinite as to make exclusion of question within discretion of trial court.

7. In such action, where no exception was taken to court's charge as to degree of care that plaintiff's intestate, a child of 5 1/2 years, was bound to exercise, if it were found that he was capable of exercising care, claim made for the first time in Supreme Court that true rule was not stated could not be con- sidered, since questions not raised below will not be considered in Supreme Court.

8. Although proposition of law may be sound as an abstract principle, in order to make omission so to instruct jury error, it must appear that omitted instruction would have been applicable to situation disclosed by evidence.

9. Court did not err in failing to instruct jury on proposition where evidence failed to afford basis therefor, in that to do so court would have had to base an inference upon a fact the existence of which itself rested upon a prior inference, contrary to the well-established rule in that respect.

10. Exception to failure of court to instruct as requested, merely by reference to numbers of requested instructions, is too general to require attention.

11. Where court had instructed jury, without objection or exception, that defendant was chargeable with knowledge of what he could have seen if he had looked, exception to failure to charge relative to special duty of traveler confronted with what he saw or ought to have seen, is too general to require attention, since exception does not point out claimed shortage in charge as given, nor what additional charge, if any, was required.

12. Where jury were instructed, without exception being taken, as to decree of care required of drivers of automobiles where safety of children were concerned, refusal to give requested instruction on same subject-matter which would have added nothing to charge as given, if error, was harmless.

13. It is court's duty without request to charge upon every essential part of case, but this does not mean that it is bound to make every conceivable comment upon evidence; and, if court fails to charge on all essential matters, it is duty of counsel to call its attention to claimed shortage or error, so that it may be corrected.

14. Negligence is contributory in a legal sense only when it is a proximate cause of injury, such contribution in least degree barring recovery.

15. Where, after jury had deliberated some time, it returned to courtroom and requested court to repeat instructions referring to ability of plaintiff's intestate, a child 5 1/2 years old, to look after himself, and presiding judge thereupon repeated instruction upon question of child's capacity for exercising care,

to the effect that if he failed to exercise degree of care equal to his capacity, "and it contributed in the least degree to the accident," verdict should be for defendant, held that supplemental charge was not erroneous as failing to indicate that such contribution must have been proximate, court in its original charge having fully explained term "proximate cause," and pointed out its application to plaintiff's intestate, and it not appearing that jury could have been misled by omission to repeat this explanation.

ACTION OF TORT for negligence, to recover damages for death of plaintiff's intestate, a child 5 1/2 years old, resulting from injuries received by being struck by an automobile owned and operated by defendant. Plea, general issue. Trial by jury at the September Term, 1926, Chittenden County, Thompson, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Charles H. Darling and Guy M. Page for the plaintiff.

Warren R. Austin and J. Ward Carver for the defendant.

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

OPINION

MOULTON

The plaintiff's intestate, a child of five and one-half years of age, was struck and fatally injured by an automobile owned and operated by the defendant, proceeding in a southerly direction on Shelburne Road, about one and one-half miles south of the city of Burlington. The plaintiff alleges that the negligence of the defendant was the proximate cause of the accident. After trial by jury, the verdict was for the defendant, and the case is here on the plaintiff's exceptions.

On the direct examination of the defendant by his own counsel he was asked:

"Do you know of anything you could have done that you did not do to avoid hitting this child?"

Subject to exception by plaintiff, he answered:

"I know of nothing I could have done."

It is said this was error because the evidence showed that the child, in crossing the road, was visible to the defendant for at least 60 feet before the accident occurred; that the defendant's car, at the rate at which it was proceeding, could be stopped in 20 feet; and that there was room, in the highway, to pass either to the right or left of the child. Therefore, it is argued, that the defendant was charged with notice of what he should have seen, and that the state of his actual knowledge was immaterial, because his liability is to be determined not by what he knew, but by what he was bound to know. But the defendant had testified that, as he approached the place of the accident, a car driven by John Blair, was backing toward the road from a driveway leading to a store called the Bradley store on the defendant's left; that a truck was parked on the right-hand of the highway, nearly opposite the driveway; that as he turned to the left to pass the truck, he watched closely the backing car, fearing that he would get caught between it and the truck; that it backed to a point very near the hard surface of the highway; that there was no child visible between him and the Blair car until after he had passed it, when the child was seen running rapidly in the road, in front of the defendant's car and close to it, much in the same direction as the car was proceeding. The defendant was then turning back to the right-hand side of the road after having passed the truck, and was not far from the middle of the pavement. It appeared that the surfaced part of the road was about 21 feet wide. The evidence for the defense tended to show that the child was hidden from sight by the Blair car, and ran suddenly out as the defendant was passing and too close to enable him to avoid the...