Elwell v. Barrows Coal Co., Inc. , 100 Vt. 179 ( 1927 )

At the close of the evidence, the defendant moved for a directed verdict on nine different grounds, assigned in that number of different paragraphs. In its brief defendant says it "moved for a directed verdict for the following, among other, reasons: * * *." Then are given three reasons, the first of which is not found among those in fact assigned at the time the motion was made. This being so, the reason now thus assigned is not further noticed.

The second ground now assigned is "That the plaintiff's wife was not shown to be free from contributory negligence." The ground thus now stated is substantially the last part of grounds 2 and 3 as originally assigned; but those assigned grounds begin with the statement: (2) "Because the plaintiff seeks to recover in the right of, and for injury to, his wife," etc., (3) with substantially the same statement. These statements were fundamentally contrary to the record. The plaintiff does not in this action seek to recover "in the right of his wife," nor "for injury" to her. The plaintiff declares upon the cause of action which arose at common law to him personally for the loss of his wife's services, the expense, etc., in consequence of the injury to her caused by the alleged negligence of the defendant's servant on the occasion in question. Whitcomb v. Town of Barre,37 Vt. 148; Earl Wife v. Tupper, 45 Vt. 275; 13 R.C.L. 1434;Mageau v. Great Northern Ry. Co., 103 Minn. 290, 115 N.W. 651,946, 15 L.R.A. (N.S.) 511, 14 Ann. Cas. 551; Blaechinska v.Howard Mission and Home, 130 N.Y. 497, 29 N.E. 755, 15 L.R.A. 215.

The third ground now assigned is: "It was not shown that the defendant or the driver of the truck was negligent." This ground was not assigned in the motion for a directed verdict as made, and passed upon by the trial court. It is therefore not considered.

The defendant filed certain requests to charge, numbered from 1 to 11 inclusive, and in its brief asserts and relies upon the failure of the court to comply with the 5th, 7th and 9th of them.

The 5th was, "That the driver of the defendant's car was not required to extend his observation beyond a point where vehicles moving at a lawful rate of speed would threaten his safety." The language of this request was broad enough to cover all kinds of "vehicles," having a lawful rate of speed, whether outside or within a city, incorporated village or the thickly-settled part of a town, in which the lawful rates of speed are different (See section 86, No. 70, Acts of 1925), or a tractor or motor truck, carrying more than a limited weight, upon any highway or bridge at a rate of speed limited to ten miles an hour when such vehicle is equipped with iron or steel tires (See sections 79, 112, 113). This request was too general, and there was no error in disregarding it.

The 7th request was: "If at the time the driver of the defendant's truck started to cross the street there was no one approaching the place of the proposed crossing, within such distance as reasonably to indicate danger or interference, or collision, the driver of the truck was under no obligation to stop or wait, but might proceed to cross the street as a matter of right."

In effect this request presupposes, as true, a certain material fact in controversy, namely, that "there was no one approaching the place of the proposed crossing, within such distance as reasonably to indicate danger or interference or collision." This was a question for the jury to determine on the evidence. The request does not say, "If the jury shall find on the evidence that at the time," etc. There was no error in refusing to charge as thus requested. But it is said the court was bound to charge on the subject-matter of the request without being asked so to do. Whether this be so or not, the exception saved was not put upon that ground, and the question is not before us.

The ninth request: "It was the duty of the driver of the Maxwell car to have his car under control while going through this thickly-settled part of a town, and proceed at a lawful rate of speed, and the driver of the truck had a right to rely upon the assumption that he would do so.

The statement contained in the report of the accident to the Secretary of State, signed by the driver of the truck and by him, in cross-examination, asserted to be true, shows that when he was about to make the turn to enter the school yard, he saw the Maxwell car coming about 150 feet to the west. Thus knowing that car to be approaching, the law gave him no right to rely upon the assumption that it was proceeding at a lawful rate of speed beyond the time when he saw, or in the circumstances ought to have seen, that it was not, or would not be, true. As the case stood on the evidence, the request under consideration, without such limitation, was unsound in law and rightly refused. Hatch v.Daniels, 96 Vt. 89, 117 A. 105; Dumont v. Cromie, 99 Vt. 208,130 A. 679.

Judgment affirmed.