William B. Standish v. Solon Newton
| Decision Date | 05 November 1930 |
| Citation | 152 A. 41,103 Vt. 85 |
| Parties | WILLIAM B. STANDISH v. SOLON NEWTON |
| Court | Vermont Supreme Court |
October Term, 1930.
Evidence---Expert Testimony as to X-Ray Picture---Trial---Cross-Examination---Estimate of Party as to Receipts and Expenses before and after Injury---Assault and Battery---Justification---Necessity That Party Claiming Error Show Offered Evidence Was Admissible When Offered---Knowledge by Defendant of Injury Received in Previous Assault by Plaintiff---New Trial---Discretion of Trial Court---Limitation of Review by Supreme Court of Refusal To Set Verdict Aside as Excessive---Insufficiency of Facts To Show Abuse of Discretion in Refusing To Set Aside Verdict.
1. Permitting expert witness to explain to jury what X-ray picture showed, held without error.
2. In ACTION OF TORT for assault and battery, exclusion on cross-examination of question asked medical expert as to effect use of alcoholic liquor after Injury would have on person injured as plaintiff was, held, proper, there then being no evidence in case that plaintiff had used liquor since injury, hence question not being within scope of proper cross-examination.
3. Ruling excluding question as to effect of use of intoxicating liquor after injury, by person injured as plaintiff was, proper when made because there was then no evidence in case of such use of liquor, was not rendered erroneous by later evidence showing such use by plaintiff.
4. Plaintiff's estimate of receipts and expenses prior and subsequent to assault and comparison of similar items of each period, held admissible over objection that it was not best evidence.
5. In action of tort for assault and battery, defendant's offer to show that "soon after" trouble in question he had gone to police office and applied for protection, held inadmissible to show fear of plaintiff at time defendant hit him.
6. In such action, it is only knowledge which defendant had at time of assault regarding belligerent character of plaintiff that counts in defendant's justification.
7. In such action, defendant making offer of proof in justification must show that offered evidence is admissible in then present aspect of case.
8. In such action, defendant's offer to show that he had passed blood from his bowels as result of assault made on him by plaintiff a short time before one on which suit was based held properly excluded, as lacking essential element that defendant discovered this condition before he struck plaintiff.
9. Motion to set aside verdict as excessive is addressed to sound judicial discretion of trial court.
10. On review of trial court's refusal to set aside verdict as excessive, Supreme Court's inquiry is limited to whether lower court's discretion has been abused.
11. In action of tort for assault and battery, refusal of trial court to set aside verdict of $4,000, held not abuse of discretion, where evidence showed brutal assault which involved infliction of several blows on head with a shovel resulting in fracture of skull and injuries impairing plaintiff's capacity to work.
ACTION OF TORT for assault and battery. Pleas, general issue and self-defense. Trial by jury at the June Term, 1929, Windsor County, Thompson, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment affirmed.
Loren R. Pierce and Howard E. Armstrong for the defendant.
Raymond Trainor and Paul Gilioli for the plaintiff.
Present POWERS, C. J., SLACK, MOULTON, and WILLCOX, JJ.
This is a tort action for assault and battery, to which reply is made by the general issue and a plea of self-defense. A jury trial resulted in a verdict for the plaintiff. The defendant excepted.
Doctor Boardman, an expert, was allowed to "read" an X-ray picture of the plaintiff's skull to the jury; that is to say, he was allowed to explain to the jury what the X-ray showed. To this the defendant excepted. There was no error in the ruling. The witness was using the picture for demonstrating purposes, and "could rightly point out the things which his practiced eye discovered, so far as they were of significance." Sheldon v Wright, 80 Vt. 298, 309, 67 A. 807, 811. The claim that the jurors could see for themselves what the X-ray showed is not warranted. The ordinary juror might utterly fail to appreciate the significance of the things appearing on the photograph unless he had the assistance of one trained in such matters. It is not until an X-ray is read by an expert that its full significance can be appreciated and understood. In this respect, it is like a finger-print photograph, which would mean little to a jury until an expert read it. See State v. Lapan, 101 Vt. 124, 133, 141 A. 686.
During the cross-examination of Doctor Boardman, he was asked what effect the subsequent use of alcoholic liquor would have on a person injured as the plaintiff was. Upon...
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