Merton W. Davis, Admr. v. Henry Raymond

• Decision Date: 08 May 1929
• Citation: Merton W. Davis, Admr. v. Henry Raymond, 146 A. 5, 102 Vt. 65 (Vt. 1929)
• Parties: MERTON W. DAVIS, ADMR. v. HENRY RAYMOND
• Court: Vermont Supreme Court

146 A. 5

102 Vt. 65

MERTON W. DAVIS, ADMR. v. HENRY RAYMOND

Supreme Court of Vermont

May 8, 1929

January Term, 1929.

Death---Negligence Not Proximately Contributing to Injury---Sufficiency of Instructions as to Remoteness of Negligence of Parents of Injured Child.

1. In action under statute by personal representative of deceased to recover damages for pecuniary injuries to latter's parents as next of kin, negligence, if any, of parents in permitting son, nearly eleven years old, and an average boy physically and mentally, to be in public street on broken tricycle, which brought him near to junction of streets having heavy automobile traffic, where he was struck by defendant's automobile and received injuries from which he died, held not to have had anything proximately to do with happening of accident, and, being remote, was not admissible to show their contributory negligence.

2. In such action, requested instruction, that if there was any negligence on part of parents of such child it was entirely too remote to be a bar to action, held not erroneous as failing in terms to assume burden of proof of parents as to contributory negligence, since it stated in most positive form that on evidence no want of care on their part contributed to injury.

ACTION OF TORT under statute by personal representative of deceased to recover damages for pecuniary injuries resulting to his parents as next of kin. Plea, general denial. Trial by jury at the September Term, 1927, Chittenden County, Graham, J presiding. Verdict for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case. Reversed and remanded.

Judgment reversed and cause remanded.

CHASE J., sat at the hearing of this case, but, having resigned from this Bench, took no part in the decision.

Raymond Trainor and Alban J. Parker for the plaintiff.

M G. Leary and Guy M. Page for the defendant.

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

OPINION

WATSON

This is an action of tort brought against defendant under the statute, in the name of the personal representative of Merton John Davis, deceased, to recover just damages with reference to the pecuniary injuries resulting from the death of such deceased person, to his parents as next of kin, caused by the alleged negligence of the defendant on March 31, 1927; that the deceased was struck on the day named, by an automobile owned and being operated by defendant, and from the injuries thus suffered, death resulted to deceased on the day following. The jury returned a verdict for defendant. The case is here on exceptions by plaintiff.

The evidence, which is by reference made controlling, shows that the accident, resulting in decedent's death, occurred at about seven o'clock on the evening of the day first above named, near the junction of St. Paul and South Union Streets in the city of Burlington; that said junction was a point of heavy automobile traffic, and electric cars were passing there north and south every fifteen or twenty minutes; that the deceased boy...