Shaw v. Barnes

Shaw v. Barnes  (95-656); 166 Vt. 610; 693 A.2d 710

[Filed 21-Mar-1997]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-656

                             JANUARY TERM, 1997


Donald and Jourdaine Shaw            }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Addison Superior Court
                                     }
Joan Barnes                          }
                                     }     DOCKET NO. 242-10-94 Ancv


             In the above-entitled cause, the Clerk will enter:

       Plaintiffs, who suffered damages when their car was struck from behind
  by a car driven by defendant, appeal from a jury verdict in defendant's
  favor and a decision by the Addison Superior Court denying their post-trial
  motions.  We affirm.

       Plaintiffs sued defendant in negligence for personal injuries, after
  defendant's automobile struck the rear of an automobile occupied by driver
  Donald Shaw and passenger Jourdaine Shaw. The parties' versions of the
  accident vary considerably, but both agree that on an August morning in
  1993, defendant was driving south on Route 7 in Vergennes, directly behind
  plaintiffs' car.  Defendant testified that as she approached the
  intersection, the cars ahead of her appeared to be moving slowly through
  the intersection and did not have their brake lights on. Defendant stated
  that as she slowed down, plaintiffs' vehicle stopped very abruptly.  She
  claimed that as soon as she saw its brake lights go on she applied her own
  brakes.  Nevertheless, defendant's car collided with the plaintiffs'
  vehicle.  Defendant added that the surface of the road, which had just been
  paved, was oily.  Defendant's statement that plaintiffs' car stopped
  suddenly was corroborated by a flag person at the site, who testified on
  defendant's behalf.

       Plaintiffs testified to the contrary that traffic was not moving
  through the intersection and that defendant caused the collision because
  she was not prepared to stop.  Plaintiffs also testified that defendant
  stated at the scene that she was driving a borrowed vehicle that was in
  poor running condition.  Plaintiffs testified that their car was heavily
  damaged and that each sustained injuries -- shoulder, neck, and back pains
  in Donald Shaw's case, and soft-tissue injury and neck pains in Jourdaine
  Shaw's case.

       The jury returned a general verdict for defendant, and plaintiffs
  moved for judgment notwithstanding the verdict, or in the alternative, for
  a new trial.   The motion was denied without a hearing, and this appeal
  followed.

       A trial court has wide discretion in deciding whether to hold a
  hearing on a new trial motion.  See Jewell v. Dyer, 154 Vt. 486, 488, 578 A.2d 125, 127 (1990);  Gardner v. Town of  Ludlow, 135 Vt. 87, 92, 369 A.2d 1382, 1385 (1977).  Plaintiffs argue in effect that in certain cases a
  hearing is mandated, but our civil rules do not support the argument.  See
  V.R.C.P. 78(b)(2) ("In any case, the court may decline to hear oral
  argument and may dispose of the motion without argument.").

       Plaintiffs maintain that their grounds for a new trial in the present
  case were stated "with particularity."  Even if particular pleading was the
  key to an automatic hearing, this motion would not meet the test. 
  Plaintiffs' argument is general, not particular.  They contend that the
  jury could not have rationally entered a verdict for defendant in light of
  the evidence presented at trial.  They also argue that the jury was
  influenced by "outside factors" -- foremost the mood

 

  of the country toward tort reform efforts.  But this argument is mere
  speculation based on their proposition that there was no rational
  explanation for the verdict.  Since plaintiffs do not state with
  particularity why the court should have conducted a hearing on their new
  trial motion, they are equally unable to indicate how they were prejudiced
  by the lack of a hearing.  See Jewell, 154 Vt. at 488, 578 A.2d  at 127
  (rejecting appellant's speculation that hearing might have made a
  difference).

       Plaintiffs' arguments on the merits of the court's denial of their
  motion for a new trial are also premised on their claim that the jury was
  indifferent to their evidence.  Defendant, however, presented a different
  version of the facts.  Given the conflicting evidence, a reasonable jury
  could have concluded that defendant kept "a proper lookout according to the
  circumstances then existing," per the unchallenged jury instruction.  The
  court summarized the evidence supporting the jury verdict, including
  defendant's testimony about the reasonableness of her driving, the flag
  person's statement that plaintiffs' car stopped abruptly, and the oily road
  conditions.

       In ruling on the motion, it was not the court's function to weigh the
  evidence as trier of fact, but rather to view it in the light most
  favorable to the jury's verdict.  Gregory v. Vermont Traveler, Inc., 140
  Vt. 119, 121, 435 A.2d 955, 956 (1981); cf. Young v. Lamson, 121 Vt. 474,
  478, 160 A.2d 873, 876 (1960) (failure to control speed and distance from
  car ahead to provide for contingency of sudden stop may constitute
  negligence; matter for jury to determine whether there was shortage of
  care).  Only if the verdict was unsupported by the evidence did plaintiffs
  have a right to a new trial as a matter of law.  Hardy v. Berisha, 144 Vt.
  130, 134, 474 A.2d 93, 95 (1984).  Plaintiffs did not meet this test at
  trial and do not do so here.

       Affirmed.

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                                 Dissenting


       DOOLEY, J., dissenting.  I agree that plaintiff was not entitled to a
  hearing on his motion for a new trial.  I also agree that a trial court
  must view the evidence in the light most favorable to the prevailing party
  and may not grant a new trial unless the jury verdict was clearly wrong.
  See Hardy v. Berisha, 144 Vt. 130, 134, 474 A.2d 93, 95 (1984).  Moreover,
  the trial court has discretion in ruling on a new trial motion and we can
  overturn the ruling only for abuse of discretion.  See Weeks v. Burnor, 132
  Vt. 603, 606, 326 A.2d 138, 139-40 (1974).  Despite our very limited role,
  we should order a new trial.  The verdict was clearly wrong, and it was an
  abuse of discretion not to overturn it.

       Even if we view the facts in the light most favorable to defendant,
  she was negligent as a matter of law.  The accident happened on Route 7 at
  a construction site.  Plaintiff Donald Shaw stopped his vehicle in response
  to a flag person for the construction company, and defendant rear-ended it
  with her vehicle.  Defendant put forward three explanations for her
  conduct: (1) plaintiffs' car stopped abruptly, (2) the newly paved road was
  oily, and (3) she was driving a vehicle loaned to her while her vehicle was
  being repaired and she was unfamiliar with it.  The trial court did not
  accept the latter two reasons, but bought the first one: "[T]he other
  evidence -- reasonable speed by defendant and sudden stop by plaintiffs --
  presented a substantial dispute for resolution by the jury."

       The problem with defendant's first explanation is that it is directly
  contrary to the law. The rule is explained in Ploesser v. Burlington Rapid
  Transit Co., 121 Vt. 133, 141, 149 A.2d 728, 733 (1959), a case in which a
  bus made an abrupt stop to avoid hitting a car ahead of it and, as a
  result, injured a passenger of the bus:


     Even in the operation of a private vehicle, the law requires the operator
     to govern his speed and maintain a reasonably safe distance behind the
     vehicle he is following to provide for the contingency of the lead

 

     vehicle coming to a sudden halt.  In this situation, failure to so control
     the factors of time and space which results in the misfortune of injury
     constitutes negligence.


  (Emphasis added).  See also Scrizzi v. Baraw, 127 Vt. 315, 318-19, 248 A.2d 725, 728-29 (1968) (affirming directed verdict that defendant was
  negligent as matter of law in rear-ender case, quoting Ploesser standard);
  Williamson v. Clark, 103 Vt. 288, 292, 153 A. 448, 450 (1931) (motorist
  must govern speed to provide for contingency of car in front suddenly
  stopping).

       The applicable standard of care fully answers defendant's argument
  that she rear-ended plaintiff because he stopped abruptly.  Defendant was
  required to drive at such a rate of speed that she could avoid the
  collision if plaintiff stopped abruptly.  It is undisputed that she
  violated this standard of care.

       The trial court's holding would make sense if it stated that plaintiff
  Donald Shaw's abrupt stop created a jury question on whether he was
  negligent, to be compared with defendant's negligence under our comparative
  negligence law.  This explanation is inapplicable, however, because the
  trial court refused to submit the question of plaintiff's negligence to the
  jury.

       I agree with the trial court that the other justifications are
  insufficient.  Defendant's best alternative was that the accident was
  caused by the oily condition of the road.  Defendant admitted to seeing the
  roadwork and the construction activity.  She also observed that the road
  was newly tarred.  She testified to the road condition as a possible
  explanation for the collision. Knowing of the road condition, her
  obligation was to control her vehicle so she could come to a stop in these
  circumstances.  See Nicholson v. Twin State Fruit Co., 113 Vt. 59, 62, 29 A.2d 819, 821 (1943).  She failed to do so.

       Defendant's argument that she should somehow be excused from the
  responsibility of rear-ending another vehicle because she was driving an
  unfamiliar loaned vehicle barely deserves mention.  Obviously, she is
  responsible to be sufficiently competent in driving the vehicle to be able
  to avoid serious accidents.

       Viewing the evidence most favorably to defendant, the verdict that she
  was not negligent is clearly wrong.  The trial court refused to grant a new
  trial for untenable reasons.  I believe we must correct the injustice of
  the defendant's verdict and order a new trial.  Accordingly, I dissent.

                                    BY THE COURT:


Dissenting:                         _______________________________________
                                    Ernest W. Gibson III, Associate Justice

_______________________________
John A. Dooley, Associate Justice  _______________________________________
                                   James L. Morse, Associate Justice

                                   _______________________________________
                                   Denise R. Johnson, Associate Justice

                                   _______________________________________
                                   Frederic W. Allen, Chief Justice (Ret.)
                                   Specially Assigned