56 Vt. 158 | Vt. | 1883
The opinion of the court was delivered by
I. The plaintiff contends that the admission of testimony of what had occurred between the defendant and Win. Stevens, and between the police and Wm. Stevens just prior to the defendant’s riding in front of his team, and turning it from the track, was prejudicial error.
The defendant was there with the duty, among other things, of clearing and beeping the track clear of teams, preparatory to the trial of speed that was about to take place. What measures he might reasonably and prudently be required to take to effect that purpose with reference to Mr. Stevens and his team, depended largely upon what ho knew had already been done to that end without avail. The duty of the defendant had relation to the safety of those who might rightfully use the track, as well as to the safety of all who were present as spectators. A danger to those rightfully using the track, if not at that moment imminent, would be likely to arise, if the track was not immediately cleared of all other teams, and kept clear of them. The defendant had the right to consider, and his action in reference to the removal of Wm. Stevens’ team might properly be modified by the influence of his refusal to keep off the track, upon, other spectators who might desire to cross or pass along the track. The jury, in judging of the defendant’s conduct on that occasion had the right to be put in possession of all the considerations, and circumstances, which might legitimately influence his acts and conduct in the removal of Wm. Stevens’ team from the track, and so be able properly to determine whether his acts and conduct on that occasion were prudent or imprudent. We think there was no error in the admission of this class of testimony, nor in the use the court made of it in the charge.
II. Whether the court correctly refused to admit Wm. Stevens to testify in rebuttal, that he did not turn the team up the bank, depends upon whether this was rebutting testimony within the new rules of the court upon this subject. The rules require the plaintiff to put in all his testimony bearing upon the issues which he makes in the case in the opening, and only allow him in the close to introduce testimony to meet and disprove issues
TIL It is contended that the court erred in charging the jury, in substance, that even if the act of the defendant in turning the team up the bank were imprudent and negligent in regard to William Stevens and those persons with him in the wagon, such negligence, although it injured the plaintiff, would not be actionable in his favor unless the defendant might have reasonably expected such an injury to have resulted from his negligent act. This limitation upon the defendant’s liability for his negligence in regard to an injury to the plaintiff therefrom pervades the entire charge upon this subject. It is variously expressed in different portions of the charge, but always to the same general effect. In closing the charge on this subject the learned judge used this language: “Was this defendant guilty of a wrong in the manner of requiring this William Stevens to leave the track? If so, did he do an act which a person thus acting must have
There are expressions scattered through the charge such as, “Now it is of no consequence whether this man could have passed down out of the gate and not be interfered with,” “ If his bits were so worn out that it was imprudent to drive spirited horses with them on, then he was negligent,” “These runaway horses got -loose and rushed into the crowd by accident,” which if standing alone would be open to criticism. For, it was the manifest duty of the defendant to have let Win. Stevens pass down the track six or seven rods and out of the gate, if ic could have been safely done, rather than to turn a pair of runaway horses into a helpless crowd of spectators; and Wm. Stevens would not be responsible for the worn out condition of the bits, if he exercised reasonable care and prudence in hiring the team, and did not know of their condition; and the breaking away of the horses might or might not be what is commonly denominated an accident. But where the whole charge is sent up for examination, it would be scrange if expressions, selected here and there, would not be open to criticism, while the general tenor of the charge and the inevitable impression loft upon the jury be correct. We do not think these and other expressions complained of by the defendant, when the whole charge is considered, were errors misleading the jury to the prejudice of the plaintiff.
JMeither is the plaintiff entitled to any special consideration from the failure of the court to comply with his requests to charge. It would be difficult to select from the thirteen requests, one tli at contains a clear cut, pointed expression of a sound proposition' of law, applicable to the facts of the ease. Many of them are attempts to have the court give special prominence to certain facts which the defendant deemed important to his side of the case ; in other words, to get the court to make a closing argument
Judgment reversed and cause remanded.