Wells v. Burlington Rapid Transit Co.

• Decision Date: 01 November 1949
• Docket Number: 347
• Parties: HELEN WELLS v. BURLINGTON RAPID TRANSIT CO. ET AL
• Court: Vermont Supreme Court

68 A.2d 911

116 Vt. 72

HELEN WELLS v. BURLINGTON RAPID TRANSIT CO. ET AL

No. 347

Supreme Court of Vermont

November 1, 1949

October Term, 1949.

Appeal and Error.

1. A request to charge the jury on an abstract proposition of law may be properly disregarded.

2. Where the bill of exceptions states that the transcript is to control, if the transcript does not contain argument of counsel and shows no exceptions taken to argument of counsel the question of error on argument is not available on review.

ACTION OF TORT for negligence in operation of motor vehicle. Trial by jury, Chittenden County Court, September Term, 1948, Blackmer, J., presiding. Verdict and judgment for the defendants.

Judgment affirmed.

Frederick W. Wakefield, Jr., for the plaintiff.

Austin & Edmunds for the defendants.

Present SHERBURNE, C. J., JEFFORDS, CLEARY and ADAMS, JJ.

OPINION

CLEARY

This is an action of tort for negligence brought by Helen Wells because of personal injuries sustained on October 23, 1947 when getting off a bus owned and operated by the Burlington Rapid Transit Company, Inc., while she was a paying passenger. Trial was by jury with a verdict for the defendants.

The accident happened about ten o'clock in the evening after the bus had stopped at the corner of Elmwood Avenue and Grant Street in Burlington to allow the plaintiff and her daughter to get off. The declaration alleged that the Transit Company was negligent in two respects: 1. Starting the bus before the plaintiff had proper time to alight therefrom, causing the plaintiff to be thrown to the pavement; and 2. Causing the plaintiff to alight in a place that was dangerous and unsafe about two feet from the curb. The bus exit had two steps down from the floor of the bus and the undisputed evidence was that the plaintiff fell from one of those steps. The plaintiff and her daughter testified that a forward lurch of the bus caused her to fall. The defendants' evidence denied that the bus moved after it stopped to allow the plaintiff to alight. So the only question of negligence for the jury to consider was whether the bus started before the plaintiff had time to get off.

The first exception briefed is to the overruling of the motion to set aside the verdict as against the weight of the evidence but in oral argument the plaintiff waived that exception.

The plaintiff duly filed several requests to charge and duly excepted to the court's failure to comply with the requests. All of the requests contained rules setting forth the obligations owed by a common carrier to its passenger. Each of them covered an abstract proposition of law, without any suggestion as to how it applied to the case on trial. Therefore, they were properly disregarded. Johnson v. Moore, 109 Vt. 282, 287, 196 A. 246; Gould v. Gould, 110 Vt. 324, 330, 6 A.2d 24; Russell v. Pilger, 113 Vt. 537, 540, 37 A.2d 403; Re Estate of Rachael Brown, 114 Vt. 380, 382, 45 A.2d 568; Von Hesse v. Tindall, 115 Vt. 414, 415, 63 A.2d 197.

The court's charge on the question of liability was as follows: "It was conceded in argument that if the transit company's bus moved when Mrs. Wells was getting off, that such movement would be negligence on the part of the Burlington Rapid Transit Company and of course that is the only claim of negligence which the plaintiffs make here. We think that such concession was properly made,...