Opinion filed January 10, 1930.
Motion To Set Aside Verdict — "Contrary to The Evidence" — "Against The Evidence" — "Against The Weight of Evidence" — Discretion of Court — Burden of Showing Abuse of Discretion.
1. In motions to set aside verdict, expressions "contrary to the evidence," "against the evidence," and "against the weight of evidence" mean same thing.
2. Motion to set aside verdict for defendant as contrary to the evidence is addressed to trial court's discretion, and its action will not be reviewed unless it appears that court has failed to exercise or has abused its discretion.
3. Party who alleges abuse of judicial discretion has burden of showing it.
ACTION OF TORT for negligence resulting in personal injuries. Plea, general issue. Trial by jury at the March Term, 1929, Rutland County, Sherman, J., presiding. Verdict for defendants. Plaintiff's motion to set aside verdict was granted as to defendant Preston, to which he excepted, and as to defendant Moreau was refused, and judgment on verdict entered as to him, to which the plaintiff excepted. The opinion states the case. Affirmed as to defendant Moreau; and as to defendant Preston affirmed and cause remanded.
Webber Leamy for the plaintiff.
George M. Goddard for the defendant Preston.
Present: WATSON, C.J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.
The plaintiff seeks damages for personal injuries to Catherine Daniels which it is alleged resulted from the defendants' negligent use of a toy cannon. The suit was discontinued as to defendant Gennette before trial, and defendants Preston and Moreau had a verdict in their favor. After verdict and before judgment, the plaintiff moved to set aside the verdict on the grounds that it was "contrary to the evidence and to the weight of the evidence" and "contrary to law." The motion was granted as to defendant Preston, subject to his exception that the verdict was not unsupported by evidence, that the action of the court in setting aside the verdict was an abuse of its discretion, and that it was contrary to law. As to defendant Moreau the motion was denied, subject to plaintiff's exception that its denial was an abuse of the court's discretion.
Except for the use of the word "contrary" instead of the word "against," which in this connection has the same meaning, the first ground of the motion is identical, in effect, with that in Howton et al. v. Strout Farm Agency et al., 90 Vt. 50, 96 A. 330, and in Manley Bros. v. Boston Maine Railroad, 90 Vt. 218, 97 A. 674; and in those cases the Court says that the expressions "against the evidence" and against "the weight of evidence" mean the same thing. See also Bradley v. Blandin Somerset Land Co., 94 Vt. 243, 257, 110 A. 309.
Whichever language is used, the question raised is addressed to the discretion of the trial court, and its action is not reviewable unless it is made to appear that it has failed to exercise or has abused its discretion. Lincoln v. Central Vt. Ry. Co., 82 Vt. 187, 72 A. 821, 137 A.S.R. 998; Howton v. Strout Farm Agency, supra; French v. Wheldon, 91 Vt. 64, 99 A. 232; McDonald v. McNeil, 92 Vt. 356, 104 A. 337; Nichols v. Lane, 93 Vt. 87, 106 A. 592; Bradley v. Blandin Somerset Land Co., supra; Temple et ux. v. Atwood, 99 Vt. 434, 134 A. 591; Robinson v. Leonard, 100 Vt. 1, 134 A. 706.
The second ground of Preston's exception, that the court abused its discretion in setting aside the verdict in his favor, presents the same question raised by plaintiff's only exception, namely, the court's abuse of its discretion. Both of these exceptions are without merit. A party who alleges abuse of judicial discretion has the burden of showing it. This neither Preston nor the plaintiff has done. On the contrary, a careful examination of the evidence, which it is unnecessary to refer to specifically, clearly shows that the court acted well within its discretionary power in disposing of the motion as it did.
The third ground of Preston's exception, that the action of the court was contrary to law, is disposed of by what has already been said.
Judgment affirmed as to defendant Moreau. Judgment affirmed as to defendant Preston, and cause remanded.
NOTE. — WATSON, C.J., sat in the hearing of this case, but by reason of his death did not take part in its decision.