Trow v. Thomas

• Decision Date: 18 July 1898
• Citation: 70 Vt. 580,41 A. 652
• Parties: TROW v. THOMAS.
• Court: Vermont Supreme Court

41 A. 652

70 Vt. 580

TROW

v. THOMAS.

Supreme Court of Vermont. Caledonia.

July 18, 1898.

Exceptions from Caledonia county court; Thompson, Judge.

Action by George W. Trow against William T. Thomas. There was a judgment for plaintiff, and defendant excepts. Modified.

The testimony of Mrs. Angell, referred to in the opinion, was that when she found her own child his clothing was soiled with road dust and stained with blood.

Taylor & Dutton, for plaintiff.

Batea, May & Simonds, for defendant.

TAFT, J. 1. As bearing upon the question of how the defendant was driving at the time of the accident, it was competent for the plaintiff to prove that the defendant was training his horse in the streets Just prior to and at the time of the accident. If he was training his horse for the races, it was more likely than otherwise he would be driving with rapidity at the time the accident occurred. It was proper to prove such fact. The fact was not collateral. His driving was a part of the same transaction as that which resulted in the accident. In this respect the case is distinguishable from that of Nones v. Northouse, 46 Vt. 587. This holding disposes of the question raised on reading the declaration, in admitting the testimony of the witnesses Rand, Stanford, and Stewart, and on the cross-examination of the defendant.

2. There was no error in admitting the testimony of Mrs. Angell. Her child was walking hand in hand with Ruth, the injured child. Both children were knocked down, and the witness' child was injured, although not seriously. Her testimony tended to show the fact of the accident, and the nature of the Injuries to Ruth, especially so if the blood on the child's clothing was the blood of Ruth.

3. As bearing upon the question of damages, it was legitimate for the plaintiff to show he employed his sister and the child's grandmother to care for the child; and the ruling of the court that the plaintiff would be liable to the latter for her services if it was mutually understood between them, at the time she rendered them, that she was to be paid, was stating a well-settled rule. We do not understand that the sums paid the respective persons named were allowed as damages eo nomine, but such payments were considered in determining the amount which the plaintiff was entitled to recover, I. e. in finding what was just and reasonable. It was proper and legitimate for that purpose.

4. The charge was excepted to because the court did not tell the jury that it was negligence per se for the mother to permit the child to be at the place of accident, and that such negligence contributed to the accident, and would bar a recovery. Under the facts stated in the exceptions, whether the mother was guilty of negligence was not a question of law, but one of fact. The two children were walking a short distance in front of their parents, were on the sidewalk, and turned but a moment out of sight to reach the street crossing. The parents were undoubtedly well acquainted with the streets, and whether there was much or little driving in them at that time of day. Whether the mother was imprudent in letting the child attempt to cross the street at the time was a proper question to submit to the jury. Whether the plaintiff in this action is chargeable with the negligence of the mother, and whether the negligence of the mother, if any, was proximate or remote, we do not consider, but simply hold that the question of the mother's negligence, if any, was properly submitted to the jury.

5. The defendant's testimony tended to show that his horse became unmanageable, and he could not control it, and that the accident was unavoidable. The court charged that, if the jury found "that without the fault of the defendant, while he was exercising proper care in managing, controlling, and restraining the horse, he became ungovernable and unmanageable, and without the fault of the defendant, and as a result of such fright and the inability of the defendant to control the horse, the accident occurred, then the plaintiff cannot recover." In effect, the charge was this: that if the horse became unmanageable without the fault of the defendant, he would not be liable; but, if it became unmanageable through the fault of the defendant, he would be. This was correct, and we cannot infer, in order to reverse the judgment, that the jury misunderstood it, or applied it erroneously.

6. After verdict the defendant moved for judgment notwithstanding the verdict, for two reasons: First, that the declaration does not set out any legal cause of action; second, because the evidence adduced at the trial does not show any legal ground of recovery. This motion of the defendant carv not be treated as a motion for judgment not obstante veredicto, for the reason that such a judgment is never entered in favor of the defendant. From the nature of the motion it is entered for the plaintiff only. It was said in Fertilizer Co. v. Caswell, 65 Vt 231, 26 Atl. 956, that such a judgment was entered in Hackett v. Hewitt, 57 Vt. 442. One might infer this from the language used in the Hackett Case, i. e. that, notwithstanding the verdict, a judgment ought to be entered upon the motion for a judgment The motion in fact was a motion in arrest, "because it appears by the writ and declaration in said case that the plaintiff has no cause of action against the defendant." The court so held, and, although there was a verdict in the cause for the plaintiff, entered judgment for the defendant, because the plaintiff had not stated a cause of action in his declaration. This is quite different from a motion for a verdict non obstante, etc. When the defendant has a verdict in those cases in which the plea confesses the cause of action, but sets forth a defense insufficient to bar the action, and which clearly shows that in any way of pleading the defendant has no merits, Judgment may be entered for the plaintiff notwithstanding the verdict, and is entered upon the confession in the defendant's plea. Sometimes judgment non obstante, etc., is rendered for the plaintiff although the verdict be in his own favor; for if, in such case as above described, he takes judgment as upon the verdict, it seems that such judgment would be erroneous, and...