Rule v. Johnson
| Decision Date | 18 October 1932 |
| Citation | 162 A. 383 |
| Court | Vermont Supreme Court |
| Parties | RULE v. JOHNSON. |
Exceptions from Windsor County Court; Warner A. Graham, Judge.
Action by William Rule against Wilbur O. Johnson. Verdict for plaintiff, and defendant brings exceptions.
Judgment affirmed.
Argued before POWERS, C. J, and SLACK, MOULTON, and THOMPSON, JJ.
Loren R Pierce, of Woodstock, and Searles & Graves, of St. Johnsbury, for plaintiff.
Raymond Trainor and Roland E. Stevens, both of White River Junction, for defendant.
This is an action in tort, in which the plaintiff seeks to recover damages for personal injuries sustained by him in an automobile accident caused by the alleged negligence of the defendant in so operating his car that it collided with the Ford truck driven by the plaintiff, from the rear, forcing the truck over an embankment. The verdict was for the plaintiff, and the case is before us on the defendant's exceptions.
In his argument to the jury, counsel for the plaintiff, after referring to the testimony that, after the accident, the defendant did not go to the plaintiff's car, or offer any assistance to the occupants, said: "is it possible that any man could be of that character?" An exception was taken, and counsel withdrew the argument and asked the jury not to consider it. The court then said that the defendant's conduct following the accident had no bearing on the question of liability or damages, and would not be so considered by the jury, but that it did bear upon the defendant's presence and opportunity for observation and was to be so considered. The jury were warned not to be misled in the matter. Assuming that the argument was improper, the withdrawal and the subsequent remarks of the court effectively cured whatever error there may have been. Woodhouse v. Woodhouse, 99 Vt. 91, 144, 130 A. 758; Fadden v. McKinney, 87 Vt. 316, 326, 89 A. 351; Herrick v. Town of Holland, 83 Vt. 502, 513, 77 A. 6. Prejudice does not appear and so the exception is unavailing. Wittig v. Burnap, 99 Vt. 340, 342, 132 A. 39; Russ v. Good, 92 Vt 202, 205-207, 102 A. 481.
A regulation promulgated by the commissioner of motor vehicles (Par. 1, effective January 1, 1926) under the authority of section 7, No. 70, Acts 1925, as amended by No. 69, Acts 1927, and in force at the time of the accident is, so far as material, as follows: "A person shall not operate or attempt to operate a motor vehicle when more than two persons, including such operator, are occupying the front or driving seat or are in the front or driving compartment of such motor vehicle * * * except that three adult persons may occupy such driving seat, provided the cushion thereof is more than forty-four inches in length, and provided further that the operator is in no wise hindered in the safe operation of such motor vehicle. * * *" It appeared that, at the time, two well grown boys, who seem to have been regarded by every one as of adult size, were riding with the plaintiff on the driving seat of the truck and that the cushion was less than forty-four inches in length.
The defendant has briefed an exception to the charge, alleging that it was left to the jury to find whether there were three persons on the seat of the truck, and whether the seat was 44 inches wide. But after this exception had been taken, a supplemental charge was given in which it was pointed out that it was admitted that there were three occupants of the seat, and that there was no evidence that it was of the required width. No further exception was taken, and the shortage in the original charge, if there was any, was cured by the subsequent instruction. White's Adm'x v. Cent. Vermont Ry. Co, 87 Vt. 330, 352, 89 A. 618; Bonazzi v. Fortney, 94 Vt 263, 270, 110 A. 439.
A claim is made in the defendant's reply brief to the effect that the supplemental charge was not sufficient because the presiding judge spoke of the seat and not of the cushion. It is very clear that this is an after thought. As we have seen, no exception was taken to the supplemental instruction, and, if counsel had considered the matter to be material, the attention of the court should have been drawn to it, and an opportunity given to correct the use of the word. See Kiley v. Rutland R. Co., 80 Vt. 536, 550, 68 A. 713, 13 Ann. Cas. 269; Dailey v. Bond, 94 Vt. 303, 304, 111 A. 394. The exception taken to the original charge was that the jury was permitted to find the width of the seat, and, in the opening brief of the defendant, it is argued that this was error because the evidence conclusively showed that the seat was less than 44 inches wide. The claim that the charge should have referred to the length of the cushion and not that of the seat appears only in the reply brief, filed after the conclusion of the argument. Not having been made below, it is not for consideration here. Temple v. Atwood, 100 Vt 371, 372, 137 A. 321, and cases cited.
Another exception to the charge is on the ground that the jury was permitted to infer that if there were three persons on the seat but that the driver was not thereby hindered in the safe operation of the truck, there would be no violation of the regulation. Since this exception is not briefed, it is waived. Gray v. Brattleboro Trust Co., 97 Vt. 270, 274, 122 A. 670; Wood v. James, 93 Vt. 36, 43, 106 A. 566. Furthermore, an examination of the charge, taken as a whole, fails to give foundation for this criticism.
The defendant moved for a directed verdict; the motion was denied and an exception taken. It is claimed that the plaintiff was contributorily negligent, as a matter of law because the uncontradicted evidence showed that three people were riding upon the seat of the truck driven by the plaintiff, and that the seat was less than forty-four inches wide.
The violation of a safety statute, or regulation of that nature, having the force of law, makes a prima facie case of negligence, and gives rise to a rebuttable presumption of negligence, which may be overcome by proof of the attending circumstances. Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 63 A. L. R. 396. It is necessary, also, that in order to constitute actionable negligence, the violation must form a proximate cause of the accident Hatch v. Daniels, 96 Vt. 89, 92, 117 A. 105. The evidence introduced by the plaintiff tended to show that the seat was not crowded and that he was not hindered in the operation of the truck by the presence of the other two persons. In this situation it was for the jury to say whether the presumption of negligence had been rebutted, and whether the violation of the regulation was a proximate cause, so as to charge the plaintiff with contributory negligence, and so bar his recovery.
In his reply brief, the defendant urges that since the evidence showed that the truck proceeded in the highway for some distance after the impact before it went over the embankment the plaintiff must have lost control of it or have been unable to apply the brakes and bring it to a stop, by reason of the presence of the three persons on the seat, or by his own negligence. But it cannot be said that this is as conclusive as the defendant claims. The question whether the accident was caused by the collision, or by some act or omission of the plaintiff, after it had taken place, and before the truck left the road, was, on the evidence, for the jury.
The verdict was for $14,000. The defendant seasonably moved to set it aside, the motion was overruled and an exception was taken. Three grounds for the motion are briefed: (1) That the verdict is excessive; (2) that it is the result of passion or prejudice and a disregard of the evidence by the jury; (3) that it is against the weight of the evidence.
Upon each of these grounds the...
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