Opinion
No. 1-80
Opinion Filed September 9, 1980 Purported Motion for Reargument Denied October 8, 1980
1. Motor Vehicles — Negligence Actions — Proximate Cause
Findings that plaintiff was carefully and prudently driving down the road, that defendant's driveway had been blocked by snow from a snowplow, and that on defendant's second attempt to drive through the snow blocking the end of his driveway he went through and onto the road at an excessive speed and crashed into plaintiff's passing auto, and conclusion that defendant was the sole proximate cause of the accident, were amply supported by the record.
2. Appeal and Error — Findings — Tests for Overturning
Where it appears on appeal that there was evidence to support trial court's resolution of conflicting evidence favorably to one party, supreme court will not disturb the findings.
3. Trial — Jury Trial Where One Is Not Required — Demand for Jury Trial
Where defendant sued in negligence did not make the demand for jury trial which rule required be made within 10 days of last pleading's service, it was not error to deny him a jury trial. V.R.C.P. 38.
4. Appeal and Error — Reversal — Witnesses
That defendant sued in auto negligence action was expecting plaintiff to call as a witness the investigating state trooper and defendant was unable to fully present his case because the trooper was not called was not grounds for reversal on ground the trooper was not called by plaintiff; defendant had the right to call the trooper as a witness on his behalf.
Defendant appealed decision against him in auto negligence action. District Court, Unit No. 6, Windsor Circuit, Donahue, Acting District Judge, presiding. Affirmed.
Thomas W. Costello of Webber and Costello, Rutland, for Plaintiff.
Earl R. Melendy, II, pro se, Londonderry, Defendant.
Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.
Defendant appeals from the entry of a judgment holding him liable for the negligent operation of a motor vehicle. In his pro se brief, defendant apparently makes three claims: (1) the trial court's findings are not supported by the record; (2) the trial court erred in denying him a trial by jury; and (3) the state trooper to whom the accident was reported was not called as a witness.
The lower court made the following findings. Shortly before 7:00 A.M. on January 4, 1978, plaintiff was driving at approximately thirty miles per hour down a steep grade on Middletown Road in South Londonderry, Vermont. Snow had fallen the previous evening, and although snow plows had cleared the road, it still was slippery. In clearing the road, the plows created a snowbank along the sides of the road, which blocked the entrance to defendant's driveway. Because of this, the defendant could not freely enter Middletown Road. He twice attempted to extricate his car from the driveway by driving it through the snowbank. On the second attempt defendant succeeded only to crash into the side of plaintiff's car as it passed.
Based on its findings that plaintiff was operating his car in a careful and prudent manner, that defendant failed to stop before entering Middletown Road, and that defendant crashed through the snowbank onto the road at an excessive speed, the lower court concluded that defendant was the sole proximate cause of the accident. Our review of the record reveals that the lower court's findings and conclusions are amply supported by the record. See V.R.C.P. 52; Osler v. Landis, 138 Vt. 353, 357, 415 A.2d 1316, 1318 (1980). To be sure, the evidence adduced at trial was in conflict. But where the trial court resolves that conflict favorably to one party, and it appears on appeal that there was evidence to support that resolution, this Court will not disturb the findings. Cushing Sons v. Labbe, 137 Vt. 307, 308, 402 A.2d 1192, 1194 (1979).
Defendant's jury trial claim is likewise without merit. V.R.C.P. 38(b) provides that a jury trial may be demanded if such demand is served in writing no "later than 10 days after the service of the last pleading directed to such issue." Rule 38(d) states that failure to serve such demand constitutes a waiver of a trial by jury. These rules are designed to preserve a litigant's constitutional right to a jury trial, Vt. Const. ch. II, § 38, while also promoting the effective administration of justice.
Proper and effective administration of the courts requires that reasonable notice be given of the intention of a party to avail himself of his right, in a civil case, to put his case before a jury. Without such notice the reference of matters to juries might well become so disordered as to make the right unavailable or ineffective as to any litigant.
Muzzy v. Curtis, 127 Vt. 516, 517, 253 A.2d 149, 150 (1969). A search of the record discloses that defendant made no demand, written or oral, prior to the trial. Therefore, defendant's claim must fail.
Lastly, defendant claims that he was expecting plaintiff to call the state trooper to whom the accident was reported, and that since plaintiff failed to do so, defendant was unable to present fully his case. While this circumstance was unfortunate, it is not a ground for reversal. It is axiomatic that each party to a civil suit has the right to call witnesses on his own behalf. But we know of no authority that holds that one party is under an obligation to call witnesses for the other party, and that a failure to do so is a ground for reversal.
Affirmed.