Luce v. Hassam

76 Vt. 450 | Vt. | 1904

Start, J.

The action is case, and is for the recovery of damages alleged to have been caused by the wrongful and negligent act of the defendant in placing three stones in a highway over which the plaintiff was driving. The plaintiff called one Quimby and asked him1 the following question: “During the time you have lived where you say you now do, what has been the use of the locality at the Corner by the public with teams — where have they gone?” The defendant’s counsel objected to this question and, on being asked to state the ground of his objection, said: “We claim there is a regular laid out sidewalk at that point, and regardless of what use the public made of it, they had no business on the sidewalk, and it makes no difference whether they have been on the sidewalk.” The fact that the defendant claimed there was a sidewalk at the point in question, was not a sufficient reason for excluding the question; and, he having limited his objection to this fact, the court was only called upon to- p-ass upon the limited objection thus made; and, as the objection disclosed no reason for excluding the question, the answer was properly taken. State v. Nokes, 70 Vt. 247, 40 Atl. 249; Foster’s Exrs. v. Dickerson, 64 Vt. 246, 24 Atl. 253.

It is alleged in- the declaration that the plaintiff, at the time she was injured, was riding in a wagon. The proof was that she was riding in a two-wheeled vehicle, and the defendant moved for a verdict on the ground of variance between the declaration and proof. The motion was properly overruled. The words wagon and cart are generic terms and mean almost any vehicle, whether used for the transportation of persons or property. The word wagon is synonymous with the word carriage and may be used to designate any wheeled vehicle intended to be drawn by horses. The vehicle in which the plaintiff was riding, at the time she received the alleged injury, was designated by the word wagon; and there was no material variance between the declaration and proof.

The defendant presented twelve requests to charge, and to the failure of the court to charge as requested, so far as there was such failure, and to- the charge as given, excepted. These exceptions are qualified and too' general. They do not point out any error in the charge as given, nor any omissions oí the court to charge as requested. The words, “to the charge as given,” is a general exception to an entire charge, covering a variety of subjects and relating to the law of negligence, contributory negligence, highways, sidewalks, and the rights and liabilities of owners of land adjacent to highways; and the exception to the refusal of the court to charge as requested is qualified and general. By the use of the words, “to the failure.of the court to charge as requested, so far as there was such failure,” the defendant, in effect, said to the court, if yoú have not complied with my requests, I except. This was not pointing out any error in the omission of the court to charge, nor was it an exception to an omission to charge that will be considered by this Court. The exception is also general, in that it refers to a large number of requests, very many of which it is conceded were complied with. It is the duty of counsel to specify the particular points in the charge, or in the omission to charge, to which they take exception. This Court will not consider a general exception to an entire charge, which, with few exceptions, is conceded to be correct; nor will it consider a general exception to the refusal of the court to charge as requested, when, as in this case, the requests are numerous, and some are fully complied with, while others are in part, or are disregarded. Goodwin v. Perkins, 39 Vt. 598; Rowell v. Fuller, 59 Vt. 688, 10 Atl. 853; Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829; Magoon v. Before, 73 Vt. 231, 50 Atl. 1070.

Judgment affirmed.