Desmarchier v. Frost

Powers, J. The plaintiff sues for personal injuries sustained while a passenger for hire in an automobile owned and [143] operated by the defendant. The verdict and judgment were for the defendant and the ease comes here on the plaintiff’s exceptions. The plaintiff engaged the defendant to carry him from St. Albans to Burlington. It was in November and the ground had frozen the night before. When within a mile or two of the place of the accident, the defendant observed that the road was thawing out and getting muddy. As the car was running along on a straight, smooth, somewhat crowning piece of road and was just on the approach to a bridge, it struck a spot of slippery clay and “slewed” into the guard rail and side of the bridge, thereby causing the injuries here sued for. When the plaintiff was on the stand as a witness in his own behalf, his counsel asked him, “What made the car go into the bridge-rail?” and he replied, “Careless.” Upon the defendant’s motion, this answer was stricken out, and the plaintiff excepted. This was not error'. The answer was nothing more than the witness ’ opinion or judgment. As the court ruled, the witness could properly be allowed to describe the defendant’s driving, showing what-he did and what he failed to do; but the inference to be drawn therefrom was for the jury. 6 Thomp. Neg. 7747.. Walter English was in the car at the time of t'he accident. He was called as a witness by the plaintiff who offered to show by him that after the accident the defendant drove differently, — that he ran the car steadier, avoided the rough places, and drove safely. This was excluded and the plaintiff excepted. The testimony was inadmissible. The only significance that could be claimed for it is that it would tend to show that he drove carelessly before the accident. But subsequent repairs or precautions are not evidence of previous negligence. Place v. Grand Trunk Ry. Co., 82 Vt. 43, 71 Atl. 836; Duggan v. Heaphy, 85 Vt. 515, 83 Atl. 726; Columbia, etc., R. R. Co. v. Hawthorne, 144 U. S. 202, 36 L. ed. 405, 12 Sup. Ct. 591. That the defendant drove carefully after the accident had no tendency to show that he drove negligently at the time of the accident. Evidence of that fact was irrelevant. Clark’s Adm’r v. Hays & Smith, 72 Vt. 138, 47 Atl. 391. The plaintiff requested the court to charge as follows: “In the circumstances of this case the happening of the .injury to the plaintiff, as disclosed by the evidence is prima facie evidence of negligence of the defendant, and, in the absence of any fault [144] of the plaintiff contributing to the injury, is sufficient to entitle the plaintiff to recover, unless the defendant has shown that he was not negligent.” It seems to be admitted by counsel for the defendant that the doctrine of res ipsa loquitur was applicable to the case made by the evidence, and we therefore assume that it was. The language of the request finds support in some of the boobs. But in any view of the matter, it was not necessary for the defendant to show that he was not negligent. The qualifying clause at the end vitiated the whole request and made it unsound. The doctrine of res ipsa loquitur does not affect the burden of proof or transform the general issue into an affirmative defence. Houston v. Brush & Curtis, 66 Vt. 331, 29 Atl. 380; Holt v. Ten Broeck, (Minn.) 159 N. W. 1073; Sweeney v. Ewing, 228 U. S. 233, 57 L. ed. 815, 33 Sup. Ct. 416, Ann. Cas. 1914 D, 905. It merely determines the mode of proving the defendant’s negligence and prescribes what shall be- prima facie evidence thereof in the class of eases to which it applies. It shifts the burden of evidence, but not of proof. When the plaintiff took the exception now under discussion he explained the point of his request; but here again he insisted that the court should have told the jury that in the circumstances shown, the law raised a presumption of negligence. In order to be consistent with the request this statement must be interpreted as using the term “presumption” in its accurate legal sense, and the court no doubt so understood it and was justified in so understanding it. The plaintiff also requested the court to charge the jury that “it was the duty of the defendant to observe the general condition of the road; and if it was soft and slippery, and for that reason an accident more likely to occur, he should have driven and governed his automobile with that condition of the road in mind.” This request embodies a sound proposition. The plaintiff was not, however, entitled to a literal compliance with it. All he was entitled to was a substantial compliance, and this he had, for the jury was instructed in effect that it was the duty of the defendant to exercise the care that a careful man would exercise in driving a ear at the place of the accident, under all the conditions there existing. And the jury was admonished to consider, when they came to a determination of the question of [145] the defendant’s pegligence, “the width of the bridge, the width and condition of the highway at the point of the accident, the condition of the surface of the highway at that time, — whether it was slippery or not, — and all of the conditions and circumstances ’ ’ disclosed by the evidence. : ■ ■. The court charged the jury that if the defendant was driving the car at the- time of the accident as a careful and prudent person would have driven it, under the circumstances, and for some unknown or unforeseen reason it skidded or slewed, the defendant would not be liable. To this the plaintiff excepted. But the instruction amounts only to this: If the defendant was not negligent, he was not liable — a self-evident proposition in a negligence case. The evidence of the defendant tended to show that on' two occasions after the accident, the plaintiff made statements exonerating the defendant from any blame for the accident. The plaintiff denied making these statements. The court charged the jury regarding this matter as follows: “If you should find that the plaintiff, soon after the injury or at any time, said that .the defendant was not negligent or not to blame for the injury, that would not prevent a recovery, if as a matter of fact the defendant was negligent, and the ease otherwise made out.” To this instruction the plaintiff excepted. Not only does it embody a sound proposition of law, but it is' in the exact language of the plaintiff’s request bn the subject. The plaintiff, now complains that the court did not make specific reference to the plaintiff’s denial of the statements. But" the instruction was. expressly made conditional upon a finding. In more than one place in the .charge this is brought out. And the jury was expressly instructed to consider the plaintiff’s. testimony on this subject. The plaintiff’s contention is without merit. •Affirmed.