Opinion
No. 204-77
Opinion Filed June 6, 1978
1. Motor Vehicles — Negligence Actions — Intersection Collisions
In auto negligence action for damages arising when defendant, heading west, hit another car heading north in an intersection and pushed the car into auto of plaintiff, who was stopped at stop sign, the driver of the auto heading north, who was a co-defendant, having testified that he thought he had enough time to cross the intersection before defendant arrived, jury's decision on and apportionment of liability had ample evidentiary basis and thus would be sustained.
2. Appeal and Error — Charge — Waiver of Defects
While facts of negligence action might make sudden emergency doctrine applicable, where defendant made no objection to trial court's failure to charge the doctrine, and raised the doctrine for the first time on appeal, no error appeared.
3. Damages — Amount and Ascertainment — Excessiveness
Where an action does not permit exact computation of damages, damages claimed excessive must stand unless grossly excessive.
4. Damages — Multiple Element Awards — Upheld
Where plaintiff in personal injury negligence action was 33 with a life expectancy of 40 more years, experienced a 15-18 percent total disability as result of accident, there was competent evidence of much pain, use of neck brace, extended physical therapy, inability to perform previous employment and a general diminished ability to enjoy the physically active part of life, and medical expenses and lost earnings amounted to $3,400, award of $80,000 was not grossly excessive, did not shock conscience of the court and, there being no indication that award was motivated by passion or prejudice, must stand.
5. Negligence — Comparative Negligence — Release From Liability
Where liability under judgment in negligence action was, by using comparative negligence statute, split between two co-defendants, defendant could not be released from liability either under theory that docket entry seemed to indicate co-defendant had paid that portion of judgment against him which his insurer had not paid, or under theory that co-defendant's insurer had been given document stating that insurer's part of the judgment was satisfied but that insured co-defendant was not released as to what his insurer had not paid.
Auto negligence action. Co-defendant appealed. Windham Superior Court, Hayes, J., presiding. Affirmed.
McCarty Rifkin, Brattleboro, for Plaintiff.
Robinson E. Keyes of Ryan, Smith Carbine, Ltd., Rutland, for Petersen.
Webber Costello, Rutland, for Carpenter.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
This is a civil action brought by plaintiff to recover damages for personal injuries sustained in an automobile accident allegedly caused by the negligence of the defendants. The jury returned a verdict for the plaintiff in the amount of $80,000, apportioning the negligence under the comparative negligence statute, 12 V.S.A. § 1036, 35 per cent or $28,000.00 against defendant Carpenter, and 65 per cent or $52,000.00 against defendant Petersen. Subsequent to the entry of judgment, defendant Carpenter's insurance company paid $20,000.00, its liability under the insurance policy, to plaintiff and received a document stating that the company's part of the judgment was deemed satisfied. The document expressly provided that defendant Carpenter's obligation for the remaining portion of the verdict, $8,000, was not released. Defendant Petersen only has appealed.
Appellant's first attack on the proceedings is based on the claimed insufficiency of the evidence to support the recovery. He claims error in the trial court's denial of his motion for a directed verdict, and his motion to set aside the verdict.
At the time of the accident, plaintiff was stopped at a stop sign, pointed south, on Oak Street at the intersection of High Street. Defendant Carpenter was stopped at a stop sign, pointed north, on Whipple Street at the intersection of High Street. Mr. Carpenter, looking left and right, determined that the way was clear and proceeded northerly from Whipple Street crossing High Street diagonally to Oak Street. He saw appellant's car proceeding westerly on High Street, but thought he had time to cross. He did not. Appellant collided with the rear portion of defendant Carpenter's automobile as he was about to enter Oak Street. The force of the impact pushed Mr. Carpenter's vehicle into the left front of plaintiff's automobile, and plaintiff's injuries resulted. There was testimony that appellant appeared to have his eyes closed until just prior to impact and that he applied his brakes only then. Also, there was testimony that appellant was driving too fast and that he might have avoided the accident by going behind defendant Carpenter's vehicle.
We must sustain the jury decision where the record discloses a sufficient evidentiary basis. Wood v. Travelers Indemnity Co., 128 Vt. 441, 443, 266 A.2d 430, 432 (1970). From our review of the record, the decision of the jury on liability, and its apportionment thereof between the defendants, has an ample evidentiary basis.
On appeal, appellant raises for the first time the sudden emergency doctrine. Stevens v. Nurenburg, 117 Vt. 525, 97 A.2d 250 (1953). While the facts of this case arguably might make this doctrine applicable, appellant made no objection to the trial court's failure to charge the doctrine. Therefore, no error appears based on the sudden emergency doctrine. V.R.C.P. 51.
Appellant challenges the denial of his motion for a new trial on the basis that the damages awarded were excessive. An award of damages must stand unless grossly excessive, where the action does not permit exact computation. Scrizzi v. Baraw, 127 Vt. 315, 322, 248 A.2d 725, 730 (1968). Plaintiff was a 33 year old woman with a life expectancy of 40 years; she experienced a 15 to 18 per cent total disability as a result of the accident. It is true that her medical and lost earnings amounted only to approximately $3,400.00, but there was competent evidence of much pain, the use of a neck brace, extended physical therapy, inability to perform her previous employment, and a generally diminished ability to enjoy athletics, the physically active part of life. From a review of the record, we cannot say that the award was grossly excessive or that it "shocks our conscience." Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 576-77, 349 A.2d 890, 894 (1975). Moreover, we can find no indication that the award was motivated by passion or prejudice. The award must stand.
Lastly, appellant claims that he should be released from liability because defendant Carpenter has satisfied his part of the judgment. If appellant is basing this argument on the document given defendant Carpenter's insurance company, he misreads it, for the document expressly provides that it in no way releases defendant Carpenter from his personal liability on the remaining part of the judgment. If appellant is basing this argument on the docket entry that seems to indicate that defendant Carpenter has paid the remaining portion of the judgment against him, that, by itself, is insufficient to allow appellant to escape his obligation to pay his portion of the damages awarded plaintiff. Additionally, we note that the co-defendants here are severally, not jointly, liable. Stannard v. Harris, 135 Vt. 544, 545, 380 A.2d 101, 103 (1977); Howard v. Spafford, 132 Vt. 434, 437, 321 A.2d 74, 76 (1974); 12 V.S.A. § 1036. No error appears.
Affirmed.