Parizo v. Wilson

• Decision Date: 06 February 1929
• Parties: PARIZO v. WILSON et al.
• Court: Vermont Supreme Court

144 A. 856

PARIZO

v. WILSON et al.

Supreme Court of Vermont. Chittenden.

Feb. 6, 1929.

Exceptions from Chittenden County Court; Julius A. Willcox, Judge.

Action by Clarence Parizo against John Wilson and James Ferrari. Verdict for plaintiff as against defendant first named was set aside and a new trial granted on question of damages only, as to defendant Wilson, and on all issues as against defendant Ferrari, and both defendants except. Judgment affirmed, and cause remanded.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.

J. A. McNamara and Guy M. Page, both of Burlington, for plaintiff.

C. O. Granai, E. C. Dufficy, and J. W. Gordon, all of Barre, for defendants.

MOULTON, J. This is an action in tort to recover for injuries to person and property arising from an automobile collision. The accident took place in Canada, a short distance north "of the border. The plaintiff was driving south, and the defendant's car was proceeding in the opposite direction. After a trial by jury, the verdict was for the plaintiff as against the defendant Wilson, with damages of $500. The defendant Ferrari was found not liable. It appeared that Ferrari owned the car, and that Wilson was driving it. Whether Ferrari was present was a controverted question, but certain evidence tended to show that Wilson was his agent, and, at the time of the accident, was driving his car as such.

At the close of all the evidence, the defendants seasonably moved for a directed verdict, and the first exception briefed is to the overruling of the motion. The only ground relied upon is that the evidence, taken in the most favorable light for the plaintiff, showed that he was guilty of contributory negligence.

The accident took place after dark. The plaintiff testified that he did not see the lights of the defendant's car until it was about 15 feet away, and from this it is argued that he was not keeping watch of the road, and that his failure to do so was negligence.

The collision happened at the top of a knoll, where the road curved to the right of the direction in which the plaintiff's car was proceeding. The evidence tended to show that he was driving at between 20 to 25 miles an hour, and on the extreme right-hand side of the road. The road was smooth and about 20 feet wide. When he reached the top of the knoll, he saw the lights of the defendant's car approaching, and pulled out still further to the right, so that the right-hand wheels of his car were in the ditch by the roadside. The plaintiff's evidence tended also to show that the defendant's car was approaching upgrade on the opposite side of the knoll at a speed of 40 to 50 miles an hour. The evidence tended to show that curve had the effect of throwing the lights of the defendant's car to one side, so that they would shine away from the road.

It is evident, of course, that any estimate of distance or speed must, under the circumstances, be somewhat inaccurate; but, even with this in mind, the question whether the plaintiff was negligent in the respect claimed, and, if so, whether such negligence was a part of the proximate cause of the accident, was, on the evidence, for the jury.

It is argued that the fact that the plaintiff suffered injuries to his left arm showed that his arm was outside the body of the car, and that the necessary inference is that he was driving with one hand, which was negligence in itself. Without accepting this legal conclusion, it is enough to say that the claim is refuted by the transcript. The plaintiff testified that his left arm was resting on the ledge of the window of the car, but not projecting beyond it, and that he was using both hands on the wheel. This evidence was corroborated by the plaintiff's brother, who was with him. No evidence to the contrary was introduced.

So, too, the fact that, upon ascending the knoll, the plaintiff did not sound his horn, did not constitute contributory negligence as a matter of law. It was clearly for the jury to pass upon this question. There was no error in overruling the motion for a verdict.

This disposition of the matter makes it unnecessary to consider the plaintiff's argument that the motion was waived by not being renewed after the case was reopened to permit the introduction of evidence which bore upon the question of damages only.

The court permitted counsel for plaintiff to argue the subject of exemplary damages to the jury, and also charged upon this class of damages. The defendants excepted. But, at most, harmless error only was committed, because it is apparent that no exemplary damages were awarded. By a special verdict the general verdict of $500 was apportioned as follows: Damages to the car, $150; damages to person, $350. The rule is well settled that a judgment will not be reversed for an error that, by the verdict, is rendered immaterial. Nones v. Northpuse, 46 Vt. 587, 503; State v. Prouty, 94 Vt. 359, 364, 111 A. 559; Prouty v. Pellett & Skinner, 96 Vt. 53, 57,117 A. 373; McKinstry v. Collins, 74 Vt. 147, 159, 52 A. 438; Lamoille County Nat. Bank v. Hunt, 71 Vt. 251, 44 A. 347.

The plaintiff moved to set aside the verdict against Wilson as to the damages only, claiming that the amount awarded was entirely inadequate, and that the jury, in assessing the damages, failed to follow the law laid down by the court, and did not base their verdict upon the evidence; and as to Ferrari, because it was contrary to the law and the evidence, and inconsistent with the finding of liability on the part of Wilson. This motion was granted, the verdict was set aside, and a new trial was ordered, on the question of damages only as against Wilson, and on all issues as against Ferrari. Each defendant excepted.

The exception on the part of Ferrari is inadequately briefed. All that is said in regard to it is: "We claim, too, that judgment should be rendered on the verdict in favor of Ferrari, as we have shown in our previous discussion." The "previous discussion," so alluded to, relates solely to the propriety of setting aside in part the verdict against Wilson. This is not enough; the point is not for consideration. Bean v. Colton, 99 Vt. 45, 47, 130 A. 580; Dumont v. Oromie, 99 Vt. 208, 215, 130 A. 679; Capital Garage Co. v. Powell, 97 Vt. 204, 209, 122 A. 423; McAllister v. Benjamin, 90 Vt. 475, 497, 121 A. 263; Dent v. Bellows Falls & S. R. St. R. Co., 95 Vt. 523, 524, 116 A. 83. We do not search the record for evidence to form a basis on which to reverse the ruling below. Sormani v. Christianson, 100 Vt. 185, 187, 135 A. 769; Raithel v. Hall, 99 Vt. 65, 74, 130 A. 749; Goodrich v. Fuller, 99 Vt. 6, 7, 130 A. 679.

In considering the exception of defendant Wilson, we are called upon for the first time to pass upon the power of a trial court to set aside a verdict and order a new trial upon one issue only. But we have no doubt that such power exists. The authority of the trial court in a proper case to set aside a veidict in toto, because of the award of excessive or inadequate damages, is well established. Smith v. Martin, 93 Vt. Ill, 122, 106 A. 666; Barrette v. Oarr, 75 "Vt. 425, 428, 56 A. 93; Woodhouse v. Woodhouse, 99 Vt. 91, 158, 159, 130 A. 758. And, where the error upon the record affects one issue only, this court will reverse the judgment and remand for a new trial upon that issue alone. This is the case where the error affects only the question of damages, Marshal v. Dalton Paper Mills, 82 Vt. 489, 504, 505, 74 A. 108 ; Austin & McCargar v. Langlois, 83 Vt. 104, 107, 74 A. 489; Adams v. Cook, 91 Vt. 281, 287, 100 A. 42; Baldwin v. Gaines, 92 Vt. 61, 73, 102 A. 338; Ryder v. Vermont Lost Block Co., 91 Vt. 158, 167, 168, 99 A 733; Green v. La Clair, 89 Vt. 346, 350, 351, 95 A. 499; Kennett et al. v. Tudor et al., 85 Vt. 190, 197, 81 A. 633; Parker v. Roberts, 99 Vt. 219, 227, 131 A. 21 (49 A. L. R 1382); and where it affects only the question of liability, Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 413, 98 A. 1010; Griffin v. Boston & M. R. R., 87 Vt, 278, 295, 296, 89 A. 220. It would seem naturally to follow that, if this court can correct an error by remanding the case for retrial upon one issue, the lower court can prevent the commission of the error by a similar procedure. As was said by the late Mr. Justice Taylor in Smith v. Martin, supra, at page 127 of 93 Vt. (106 A. 673): "The tendency of modern times has been to liberalize rules of practice in the direction of avoiding unnecessary retrials."

This practice has been recognized and followed in other jurisdictions, in the absence of express statutory authority. Simmons v. Fish, 210 Mass. 563, 568, 97 N. E. 102 (Ann. Cas. 1912D, 588); Clark v. N. Y., N. H. & H. R. Co., 33 R. I. 83, 80 A. 406, 413, 414 (Ann. Cas. 1913B, 356); Placella v. Robbio, 47 R. I. 180, 131 A. 647, 648; Murray v. Krenz, 94 Conn. 503, 109 A. 859, 860, 861; Doody v. Boston & M. R. R., 77 N. H. 161, 89 A. 487, 490 (Ann. Cas. 1914C, 846); Moulton v. Langley, 81 N. H. 138, 124 A. 70, 71; Yazoo, etc., R. R. Co. v. Scott, 108 Miss. 871, 67 So. 491, L. R. A. 1915E. 240, 253, 254, and cases cited in note page 258, Ann. Cas. 1917E, 880; Robinson v. Payne, 99 N. J. Law, 135, 122 A. 882, 883, 884.

It is said in Lisbon v. Lyman, 49 N. H. 553, 600, 601, that, when an error has happened in a trial, the party prejudiced by it has a right to the correction of the error, but has not a right to a new trial if the error can be otherwise corrected; but, if the error cannot be corrected without a new trial, then the legal right extends only to a new trial of that part of the case which contains the error.

In Simmons v. Fish, supra, it is said by Chief Justice Rugg: "If it [the trial court] is convinced upon a review of the whole case that the jury have settled the issue of liability fairly and upon sufficient evidence, so that disassociated from other questions it ought to stand as the final adjudication of the rights of the parties, and that there...