Kendall v. Borofsky

5 Citing cases

  1. Beaucage v. Russell

    238 A.2d 631 (Vt. 1968)   Cited 15 times

    If in the exercise of due care herself, the defendant had the right to assume that the plaintiff, or any person, approaching Owaissa Avenue from the area of the path would do so with due care and caution. Kendall v. Borofsky, 118 Vt. 352, 358, 111 A.2d 251. On the state of the evidence produced in the case the issue of defendant's negligence and proximate cause was for resolution by the jury.

  2. Fuller v. Rutland

    122 Vt. 284 (Vt. 1961)   Cited 27 times
    In Fuller v. City of Rutland, 122 Vt. 284, 171 A.2d 58 (1961), we confirmed Winn v. Village of Rutland, 52 Vt. 481 (1880), and held that municipal sewer activities were proprietary.

    We find that the lower court erroneously stated the law to the jury in directing a verdict in favor of the defendant. But such error will not result in a reversal if the record before us discloses any legal ground which would justify the granting of the motion for a directed verdict by the lower court. Our rule is that we will affirm a ruling of a trial court upon any legal ground shown by the record, even though the ground may not have been raised below and may not be briefed. Kendall v. Borofsky, 118 Vt. 352, 359, 111 A.2d 251; Newport Savings Bank v. Manley, 114 Vt. 347, 45 A.2d 199; McNamara v. Pickett, 109 Vt. 500, 504, 1 A.2d 716. In addition to the ground of governmental immunity, the defendant set forth in its motion for a directed verdict other grounds for the consideration of the lower court, including claimed failure on the part of the plaintiff to prove any negligence, or neglect of duty on the part of the defendant.

  3. Daigle v. Conley

    155 A.2d 744 (Vt. 1959)   Cited 10 times

    We do not search the record to discover error. Turner v. Bragg, 113 Vt. 393, 402, 35 A.2d 356. Kendall v. Borofsky, 118 Vt. 352, 357, 111 A.2d 251. The findings of the lower court No. 18A and No. 21, both have reference to six heaps of valueless cedar located in the rear of defendant's premises at the time of trial. It is defendant's contention that the lower court, in its findings, should have used the word "pile", rather than "loads" or "truck loads" in the light of the evidence in the case.

  4. Peck v. Patterson

    125 A.2d 813 (Vt. 1956)   Cited 9 times

    Loverin v. Wedge, 102 Vt. 138, 143, 146 A 248; Vermont Acceptance Corp. v. Wiltshire, 103 Vt. 219, 228, 153 A 199, 73 ALR 792; Coburn v. Drown, 114 Vt. 158, 162, 40 A.2d 528. We will affirm a ruling of the trial court upon any legal ground shown by the record, even though the ground may not have been raised below and may not be briefed. Kendall v. Borofsky, 118 Vt. 352, 359, 111 A.2d 251. Judgment affirmed.

  5. Mason v. Chase

    126 A.2d 89 (Vt. 1956)   Cited 3 times

    Mason v. Chase, 118 Vt. 369, 372, 374, 378, 111 A.2d 246. If the lower court's action in granting the defendant's motion for a directed verdict can be sustained on any ground shown by the record, the judgment will be affirmed by this Court, even though the point does not appear to have been raised below and may not be briefed. Newport Savings Bank v. Manley, 114 Vt. 347, 348, 45 A.2d 199; Kendall v. Borofsky, 118 Vt. 352, 359, 111 A.2d 251. Though not made a ground of his motion for a directed verdict the defendant now claims that the ruling was proper because no valid execution was issued in the case of Mason v. Carr in time to make the defendant here liable.