Fogarty v. Rutland Street Railway Co.

Powers, J. The plaintiff seeks damages for injuries received while she was alighting from the defendant’s trolley car. By her declaration she charges that after the car had come to a full stop for her to alight, it was suddenly and carelessly started, and that thereby she was thrown to the ground and injured. This was the case made by her evidence, and in argument her counsel not only put the claim of recovery upon this ground, but expressly disclaimed any right of recovery on any other ground or state of facts. In these circumstances the plaintiff cannot complain that the court in submitting the case to the jury, omitted or declined to recognize and submit some other theory on which a recovery might be predicated. Richardson v. Concord, 40 Vt. 207; Sherman v. Canal Co., 71 Vt. 325, 45 Atl. 227; Frappiea v. Johnson, 75 Vt. 397, 56 Atl. 100. So the court correctly charged the jury, in effect, that if the plaintiff had established her claim that the accident occurred after the car had come to a full stop for her to leave it she could recover; otherwise she could not. This instruction was in language so clear as to leave no room for doubt that the jury fully understood the question they were to decide. But it is urged that in restating the question, the court said: “On the other hand, if you find that when she (plaintiff) reached the platform, the car was then in motion, we in [440] struct you that she is not entitled to recover, as a matter of law, because the law would not uphold her, in the circumstances of this case, to attempt to alight from the car while it wees still in motion.” And it is insisted that that part of the instruction here italicised, as an abstract proposition, is not sound. But of this we need not inquire. For the jury had already been correctly instructed, in entire harmony with the plaintiff’s claim, that if the car was in motion when she attempted to get off, there could be no recovery. Such was the dominant idea of this instruction, and whether the reason assigned was sound or otherwise was, in view of the position the plaintiff had taken, immaterial and could not prejudice. Nor can the exception to the court’s refusal to charge on the. subject of contributory negligence according to the plaintiff’s request, avail her, for she had put the question of contributory negligence out of the case by the disclaimer above referred to; and although it may have contained a sound proposition of law (a question which, though argued is not decided) it was not, for the reason stated, applicable to the case on trial. Winn v. Rutland, 52 Vt. 481. After the charge was given, the plaintiff claimed the right to recover even though the car was moving at the rate indicated by the defendant’s evidence. But it was then too late. The court was under no obligation to give a new charge on a theory then for the first time adopted and utterly inconsistent with that which had obtained throughout the whole course of the trial. Judgment affirmed.