Mitchell v. Amadon, 15-69
| Decision Date | 02 December 1969 |
| Docket Number | No. 15-69,15-69 |
| Citation | 260 A.2d 213,128 Vt. 169 |
| Parties | Douglas MITCHELL, b/n/f David Mitchell and David Mitchell, individually v. Lawrence G. AMADON. |
| Court | Vermont Supreme Court |
Lee E. Emerson, Barton, for plaintiff.
Wick, Dinse & Allen, Burlington, for defendant.
Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.
This is an automobile negligence case. David Mitchell, as parent and next friend, sued for his minor son, Douglas, Lawrence G. Amadon in an action in tort brought in the Caledonia County Court. A jury trial resulted in verdict and judgment for the defendant from which the plaintiff has taken his appeal here.
The minor plaintiff, Douglas Mitchell, sustained injuries when he was either run into or hit by an automobile being driven by the defendant Amadon. The accident occurred on May 15, 1966, on US Route 5 in Sutton, Vermont, at which time Douglas was five years, eighteen days old.
On appeal, it is our duty to take the evidence in the light most favorable to the prevailing party, in this case the defendant, and the effect of modifying evidence must be excluded. Smith v. Blow and Cote, Inc., 124 Vt. 64, 66, 196 A.2d 489.
So viewed, the evidence disclosed that the defendant was driving his motor vehicle on Route 5 at a speed not exceeding thirty-five miles per hour when the infant plaintiff suddenly appeared in the middle of said highway from behind a truck traveling in the opposite direction, and into the path of defendant's motor vehicle. Defendant applied his brakes and pulled his vehicle to the right hand side of the road in an attempt to miss the infant plaintiff who was running across the highway from defendant's left to the defendant's right hand side of the road. Boy and car met at the right side of the road, at a time when defendant's motor vehicle was travelling very slowly and the infant plaintiff suffered the injuries for which he seeks recovery.
The first exception briefed here by the plaintiff is to the claimed wrongful exclusion of evidence offered by the plaintiff during cross-examination of the defendant. Counsel for plaintiff, in his cross-examination of the defendant, was apparently trying to get an admission from the defendant that the accident which injured the minor plaintiff would have happened from the negligence of the defendant even if there was no evidence that the boy and darted out from behind a truck into the highway.
The question which was asked of the defendant, and which was objected to, and then excluded by the trial court, was in the following form:
'In other words, had there been no truck on the road there at all, whether stopped or in motion, and the boy was on the edge of the road, about to dart across where he did, do you think you could have avoided this accident?'
The scope of cross-examination is generally within the discretion of the trial judge. But where the witness is a party there is a right to cross-examination on any material matter whether covered by direct examination or not. Viens v. Lanctot, 120 Vt. 443, 447, 144 A.2d 711.
It is the contention of the plaintiff three possible situations had been developed on the presence or absence of a truck at the point of the accident at the time the excluded question was asked of the defendant. One such situation was that the truck was parked on the highway, while another situation was that the truck as in a line of traffic heading in the opposite direction from the defendant's way of travel. Also, claims the plaintiffs, there was evidence that no truck was there.
The third situation, says the plaintiff, is by reason of the testimony of the youthful cousin of the plaintiff, who at the time of the accident was 12 or 13 years of age and was riding a bicycle on the same side of the highway on which the defendant was driving his motor vehicle, but who had her back turned toward the scene of the accident at the time of its happening.
When asked in direct examination by the plaintiff if she saw any other cars that were passing by going in the same direction that she was travelling at the time, her answer was: 'I can't remember any cars, any cars passing me.'
However, on cross-examination: 'Rebecca, do you really have any recollection one way or another as to what the traffic was that day', her answer was 'No.' Of greater importance, the evidence relied upon by the plaintiff was not in the case at the time the excluded question was asked.
The examiner was inquiring of the defendant through the excluded question, the opinion of the witness on whether or not he could have avoided the accident upon facts not then disclosed by the evidence.
'Opinions must be based on facts disclosed by the evidence in the case and not in whole or in part upon speculation of the witness as to what might have been such evidence.' Bliss v. Moore and Stoughton, 112 Vt. 185, 190, 22 A.2d 315, 317.
No error is found.
The next briefed exception of the plaintiff is to the charge of the lower court, with particular reference to the charge on the matter of contributory negligence. If we understand the brief of the plaintiff correctly, the claim is that the lower court erred in submitting the question of contributory negligence to the jury for three different reasons. The first of such reasons is the contention of the plaintiff that the defendant judicially waived the affirmative defense of contributory negligence.
No question is raised by the plaintiff that the defendant, in his answer, affirmatively defended the action by asserting that Douglas Mitchell, the boy, was negligent in the manner in which he crossed Route 5, and that plaintiff David Mitchell, the father, was negligent in the manner in which he supervised the activities of Douglas at all times material to the action. Also alleged is that the asserted negligence of both plaintiffs formed a proximate cause of the injuries of which plaintiff complained.
The remarks of the counsel for the defendant which the plaintiff now claims was a judicial waiver of the asserted defense of contributory negligence took place during a conference between court and counsel in chambers. The conference was held relative to the admission of certain evidence in which defendant was attempting to show that David Mitchell, the father, had knowledge that the children, of which Douglas was one, were playing near the highway just before the time of the accident. The discussion in chambers, disclosed by the transcript, was on the question of whether claimed negligence on the part of the infant plaintiff's parents would be a defense to the father's action against the defendant, as well as to whether such negligence on the part of a parent could be a proximate cause of the accident.
While during this discussion counsel for the defendant did use some language which, taken alone, might indicate a nonreliance of the pleaded defense of the infant plaintiff, we cannot find that it was a judicial waiver on the part of the defendant of his pleaded affirmative defense of contributory negligence on the part of the minor plaintiff. Nothing on the record indicates that it was so construed at the time by the court or the counsel involved. Furthermore, the record does not disclose that the plaintiff made the claim advanced here in the trial below. The record discloses that the objections made by the plaintiff to the charge of the court on submitting the question of contributory negligence to the jury were on the grounds that the defendant failed to argue such defense to the jury, and that the court should have entered a judicial waiver of this issue and should not have submitted it to the jury. At no time, does the record disclose, did the plaintiff present to the trial court the question of whether or not the defendant had waived the defense of contributory negligence because of the statement made in chambers. A question cannot be brought to this Court upon which it is made to appear that the trial court had no fair opportunity to pass judgment. State v. Haskins, 120 Vt. 288, 296, 139 A.2d 827. We find no error.
The plaintiff did except to the charge of the court on the matter of contributory negligence, as we have just...
To continue reading
Request your trial
-
Brown v. State
...Opening statements provide the opportunity for a party to outline what it expects the evidence to establish. Mitchell v. Amadon, 128 Vt. 169, 175, 260 A.2d 213, 216–17 (1969) (finding that opening statement put plaintiff on notice of contributory negligence claim); see also Commonwealth v. ......
-
State v. Berard
...the light most favorable to the prevailing party, here the state, excluding the effect of any modifying evidence. Mitchell v. Amadon, 128 Vt. 169, 171, 260 A.2d 213 (1969). The evidence discloses the following The accused lived on North Street in Burlington as did one Ray Rebideau. Prosecut......
-
Brown v. State
...Opening statements provide the opportunity for a party to outline what it expects the evidence to establish. Mitchell v. Amadon, 128 Vt. 169, 175, 260 A.2d 213, 216-17 (1969) (finding that opening statement put plaintiff on notice of contributory negligence claim); see also Commonwealth v. ......
-
Matson by Kehoe v. Anctil
...a child is automatically incapable of exercising care or discretion, and so cannot be found contributorily negligent. Mitchell v. Amadon, 128 Vt. 169, 260 A.2d 213 (1969); Johnson's Adm'r v. Rutland R.R., 93 Vt. 132, 139, 106 A. 682 (1919). In Johnson, the Vermont Supreme Court set forth th......