Morris v. Wallace

This is an action of tort in which the plaintiff seeks to recover for damages to his automobile resulting from an accident which occurred in Ferdinand, in Essex County, April 23, 1936. Immediately before the accident defendant was driving a car owned by himself in a westerly direction on the highway leading from North Stratford to Island Pond. Plaintiff's automobile was proceeding in an easterly direction, trailing another car hereinafter referred to as the Powell car, and was being operated by plaintiff's son, Thomas Morris. The time of the accident was between nine-thirty and ten o'clock in the evening. Trial by jury in Orleans municipal court. Verdict and judgment thereon for plaintiff. The case is here upon defendant's exceptions.

Plaintiff filed a motion in this court to dismiss defendant's bill of exceptions, assigning various reasons therefor. However, since this motion was submitted, defendant has filed an amended bill of exceptions. The grounds urged by plaintiff in his motion aforesaid do not apply to defendant's amended bill. Neither does it appear that plaintiff raises any question as to the sufficiency of defendant's amended bill. Therefore we give no further consideration to this motion, and proceed to take up the questions raised for our consideration.

(1) The first exception briefed by defendant relates to exclusion of certain offered evidence. When the defendant Wallace was on the stand as a witness he was shown a certain written document by plaintiff's counsel. Defendant admitted signing same and also admitted that this document contained at least one statement inconsistent with his testimony there in court. The document was not introduced in evidence. Following this, the defendant's counsel, Mr. Miles, made the following offer: "I claim, if the Court please, the right to show the circumstances under which the statement was signed, the person who procured his signature to it, the man in whose handwriting it is made, the nature of that man's business, and all the conversation that was had in reference to it." This offer was excluded and defendant excepted. The offer did not apprize the court of any particular circumstances or statement made in the conversation referred to which defendant wished to show, and it did not appear from the offer in what respect anything contained therein would be helpful to defendant or how same was material to the case. The offer made was properly excluded. State v. Tubbs, 101 Vt. 5, at page 20,139 A. 769; State v. Noakes, 70 Vt. 247, 40 A. 249; Carpenter v.Willey, 65 Vt. 168, 26 A. 488; Nichols v. Central Vt. Ry. Co.,94 Vt. 14, 109 A. 905, 12 A.L.R. 333; Hovey v. Cook, 83 Vt. 458, 76 A. 144; White v. State, 4 Okl. Cr. 143, 111 P. 1010;People v. Duncan, 315 Ill. 106, 145 N.E. 810; Commonwealth v.Perry, 254 Mass. 520, 150 N.E. 854; Davidson v. Commonwealth,214 Ky. 205, 282 S.W. 1090; Cates v. State, 170 Ark. 1192, 283 S.W. 12; People v. McGann, 194 Cal. 688, 230 P. 169.

(2) The court in its charge to the jury stated several rules of the road having application to the issues in this case. The transcript shows the following exceptions saved by defendant: "The defendant excepts to the failure of the court to charge the jury the rule of law which provides that the driver of an automobile must approach the brow of a hill or a curve with due care to avoid accident, in view of the fact that the court calls certain other rules to the jury's attention." Defendant claims that the evidence showed that leading from the point of the accident back toward Island Pond the road was nearly straight and on an ascending grade of about 3 per cent to the top of the grade or, as it was referred to in the case, "the brow of the hill." At the brow of the hill there was a slight curve. Plaintiff's car, in coming from Island Pond to the scene of the accident, left this slight curve at the brow of the hill, but there is nothing pointed out by defendant to indicate how far from the scene of the accident it was where plaintiff entered this curve. There is no argument or suggestion in the brief indicating in any way how the law applicable to the duty of the driver of plaintiff's car upon entering this curve could have had any material bearing upon the issues in this case. Hence this exception is not sufficiently briefed to require further consideration. Silver DiscountCorporation v. R.A. Blair, 106 Vt. 11, at pages 16 and 17,168 A. 917.

(3) Defendant excepted to the statement of the court in its charge where the court stated, "the defendant himself testified that he could have stopped his car by the sharp application of his brakes within the distance which he had to do it, which was about, as I remember it, one hundred fifty feet." However, reference to the transcript shows that the very next sentence following this quotation from the court's charge is as follows: "You, gentlemen, will remember the testimony and take your own remembrance of it, and under these circumstances it is for you to say," etc. No claim is made but that defendant did testify that he began to be blinded by the lights of the Powell car about 150 feet from the scene of the accident and that he could have stopped his car by the sharp application of his brakes within the distance which he had to do it. Under these circumstances error is not made to appear and therefore this exception is not sustained. State v. Winters, 102 Vt. 36, at page 61, 145 A. 413; Randall v. Beryl Lumber Co., 95 Vt. 158, 113 A. 872.

(4) Defendant excepted to the following statement contained in the court's charge to the jury, namely: "The plaintiff must convince you by a preponderance of evidence that what he says is true; that what he claims is true." To this statement in the charge defendant excepted in the following language: "The defendant excepts to that part of the court's charge in which the court said that the plaintiff must convince you that what he says is true in order to recover because all the plaintiff says may be the truth and yet not constitute negligence." Defendant appears to have construed the above quoted statement from the court's charge as an instruction to the jury that if they believe what the plaintiff said, he was entitled to recover, but this is not a fair construction of the statement and this is especially true when considered in the light of the court's instruction which soon followed this and which was as follows: "In order for the plaintiff to recover in this case he must convince you by this preponderance of evidence that the defendant was negligent. He must go a step further and convince you that the negligence was the proximate cause of the accident. Now proximate cause simply means that without which this accident would not have happened when, where and how it did happen. That is what proximate cause is. Having convinced you by a preponderance of the evidence that the defendant was negligent and that this negligence was the proximate cause, he must go still further and convince you by this preponderance of evidence that he himself was free from negligence which contributed in the slightest degree to cause the accident." There is no reasonable probability that the jury could have in any way been misled or the defendant have been in any way prejudiced by the statement in the charge here excepted to, and therefore no error appears in this respect. Therefore this exception is not sustained. State v. Winters, supra; Randall v. Beryl Lumber Co.,supra.

(5) The defendant excepted "* * * to the failure of the court to charge the jury that defendant Wallace was not bound to attempt to immediately stop his automobile if a prudent man would have failed to see the rocky bank upon which he drove his automobile; in other words, that the defendant was not bound to stop if a prudent man in the same circumstances would not have done so * * *." No claim is made but that the court correctly charged the prudent man rule as applicable to defendant's conduct under the circumstances in question, and an examination of the transcript affirmatively discloses that the court did so charge. Had the court further charged as urged or suggested in defendant's exception last above quoted, he would simply have been stating the prudent man rule in another form. This he was not required to do. Therefore the court's failure to do so does not constitute error.

This disposes of all questions presented by defendant for our consideration and no error appears.

Judgment affirmed.