William Rule v. Wilbur O. Johnson

• Decision Date: 18 October 1932
• Parties: WILLIAM RULE v. WILBUR O. JOHNSON
• Court: Vermont Supreme Court

162 A. 383

104 Vt. 486

WILLIAM RULE v. WILBUR O. JOHNSON

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Trial---Argument of Counsel---Harmless Error---Instructions to Jury---Supplemental Charge---Question Not Raised Below---Failure To Brief Exception---Negligence---Violation of Safety Statute or Regulation as Prima Facie Negligence---Proximate Cause---Jury Question---Motion to Set Aside Verdict---Discretion of Court---Size of Verdict on Question of Passion, Prejudice, or Improper Motive of Jury.

1. Error, if any, in statement of counsel, in argument, after referring to testimony that, after accident, defendant did not go to plaintiff's car nor offer assistance to occupants, "Is it possible that any man could be of that character?" which upon exception was immediately withdrawn by counsel who asked jury not to consider it, held cured by such withdrawal and subsequent instructions of court that defendant's conduct after accident had no bearing on question of liability or damages, and should not be so considered by jury.

2. Alleged error in instruction to jury, on ground that it was left to jury to find whether there were three people on seat of truck at time of accident, and whether seat was 44 inches wide, held cured by supplemental charge, to which no exception was taken, stating that it was admitted there were three occupants of seat, and no evidence that seat was of required width.

3. Claimed error in supplemental charge, to which no exception was taken, that it should have referred to length of cushion and not that of seat of truck, which appeared in reply brief filed after conclusion of argument, held not for consideration in Supreme Court, not having been raised below.

4. Exception not briefed is waived.

5. Violation of safety statute, or regulation of that nature having force of law, makes prima facie case of negligence and gives rise to rebuttable presumption of negligence, which may be overcome by proof of attending circumstances.

6. In order to constitute actionable negligence violation of safety statute, or regulation of that nature having force of law, must form proximate cause of accident.

7. Whether presumption of negligence, arising from driver operating truck with two other persons seated with him on seat, cushion of which was less than 44 inches in length, in violation of safety regulation having force of law, was rebutted by evidence showing that seat was not crowded, and that driver was not hindered thereby in operation of truck and whether violation of regulation was proximate cause of automobile collision so as to charge plaintiff with contributory negligence, held for jury.

8. Grounds of motion to set aside verdict as excessive, as result of passion or prejudice and disregard of evidence, and as against weight of evidence, held directed to discretion of trial court, whose ruling is not to be disturbed unless it is made to appear that court failed or refused to exercise its discretion or abused it.

9. In ACTION OF TORT for personal injuries received in automobile collision, held that action of trial court in denying motion to set aside verdict of $14,000 as excessive, in view of evidence as to damages, did not constitute abuse of discretion.

10. In such action, refusal of trial court to set aside verdict as result of passion or prejudice and disregard of evidence by jury, and finding that jury was not so influenced, held proper.

11. Size of verdict alone, even if excessive, does not necessarily show that jury was influenced by passion, prejudice, or any improper motive.

ACTION OF TORT to recover for personal injuries received in automobile accident from alleged negligence of defendant. Plea, general denial. Trial by jury at the June Term, 1931, Windsor County, Graham, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Raymond Trainor and Roland E. Stevens for the defendant.

Loren R. Pierce and Searles & Graves for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ.

OPINION

MOULTON

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 Jan. 1, 1926) under the authority of Sec. 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 everyone 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 forty-four 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 Admx. v. Central 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 afterthought. 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. 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 forty-four 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.

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...