Tucker v. Yandow

• Decision Date: 08 January 1927
• Citation: 135 A. 600,100 Vt. 169
• Parties: RITA TUCKER b/n/f v. HARRY YANDOW, ET AL
• Court: Vermont Supreme Court

135 A. 600

100 Vt. 169

RITA TUCKER b/n/f v. HARRY YANDOW, ET AL

Supreme Court of Vermont

January 8, 1927

November Term, 1926.

ACTION OF TORT. Plea, general issue. First trial by jury at the March Term, 1925, Chittenden county court, resulted in verdict for plaintiff for $ 2,000, which on plaintiff's motion was set aside, and retrial granted by presiding judge on question of damages only, to which defendants excepted. Retrial by jury at the September Term, 1925, Chittenden County, Willcox, J., presiding. Verdict for $ 12,500, which was cut down by remittitur to $ 10,000, under an alternate order, and judgment rendered for latter sum. The defendants excepted. The opinion states the case.

Judgment affirmed.

Charles F. Black and Warren R. Austin for the defendants.

M G. Leary and J. A. McNamara for the plaintiff.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

POWERS

This is a tort action based on an accident that resulted in such injuries to the plaintiff, a child about three years and eight months old, that amputation of her left leg was necessitated. The case was first tried by jury at the March Term, 1925, of the Chittenden county court. That trial resulted in a verdict for the plaintiff for $ 2,000. This verdict, on the plaintiff's motion, was set aside as to damages, and a retrial was ordered on that issue. This motion was contested by the defendants, who insisted that if any part of the verdict was to be set aside, it should all be set aside and a full retrial granted. Various exceptions were saved by the defendants during the trial, and one of these was to the order of the court setting aside the verdict in part. But nothing was done by the defendants under these exceptions, either by preparing and filing a bill of them, or otherwise. At the following term of the county court, the case came on for trial before another presiding judge--a fact of which we take judicial notice Hancock v. Worcester, 62 Vt. 106, 108, 18 A. 1041--and a jury. Before the retrial began, the defendants moved that they be granted a full retrial. This motion was denied and they excepted. Thereupon, they moved that the transcript of the former trial be made a part of the record of the retrial, to the end that all questions of law and fact could be heard and decided on review of the second trial. This motion was granted. The trial then proceeded and resulted in a verdict fixing the damages at $ 12,500, which amount was cut down to $ 10,000 by a remittitur filed under an alternative order. A bill of exceptions signed by the judge who presided at the second trial was duly filed by the defendants. This bill attempts to cover all the exceptions saved at the first trial, and the defendants have briefed these as though they were properly before us. But they are not.

The right to an appellate review is purely...