Before CLARK, WATERMAN and MOORE, Circuit Judges.
In this diversity jurisdiction negligence action tried in the United States District Court for the District of Vermont judgment was entered upon a jury verdict of $15,000 in favor of the plaintiff, the administratrix of the estate of Charles Socinski. The defendant appeals from that judgment and from the denial of his motions after verdict. The claimed errors upon which the appeal is based are discussed later in the opinion after the recitation of the facts.
The automobile accident out of which this lawsuit arose occurred about 2:30 P.M. on February 8, 1958, in Ludlow, Vermont. Although there is some dispute as to the circumstances of the accident, we must view the evidence in the light most favorable to the plaintiff. Intending to stop only briefly to pick up his bag and check out of the tourist home where he had been staying, the defendant parked his car in the traveled portion of the highway in front of that establishment although he knew that the proprietor had provided off-street parking facilities for his patrons. With his wife as a passenger in his automobile, the plaintiff's decedent, Socinski, was traveling on the same highway at 20 to 30 miles per hour, in the same direction in which the defendant had been traveling before he had stopped. Socinski had to drive around a curve as he approached the place where the defendant's car was parked. A snowbank five feet or more in height on the side of the highway obstructed Socinski's view of the defendant's automobile as the decedent rounded the curve. The road surface was slippery with snow.
Meanwhile a truck was approaching in the opposite direction at 15 miles per hour. The highway was seventeen to nineteen feet in width. The defendant's car protruded six feet into the road, thus leaving only eleven to thirteen feet of roadway for the Socinski car, six to six and one half feet in width, and the truck, seven to seven and one half feet in width, to meet and pass by each other. Twenty to twenty-five feet before Socinski's car would have come abreast of the defendant's parked car it collided with the oncoming truck. The point of contact was near the center, but on the truck's side of the highway. The collision damaged the left front ends of both vehicles. No eye-witnesses to the accident testified at the trial. Mrs. Socinski, the passenger, was looking down at her dog when the collision occurred, and the impact knocked her unconscious. However, just prior to the accident she saw her husband put his foot on the brake and felt the car slow down somewhat.
At the moment the accident occurred the defendant was on the porch of the tourist home about to go inside. When he heard the crash he turned around and saw the drivers get out of their vehicles and start arguing. Then he went upstairs to get his bag. He remained upstairs about ten minutes, paused on the porch for a bit upon his return and then entered his automobile "rather hurriedly" without talking to anyone, and drove off.
That day Doctors Neil and Stickney examined Socinski. They found him to have severe pain in his chest above the nipple line; bruises on his face, left shoulder, chest, elbows, knees, right forefinger, and other parts of his body; and possible fractured ribs. Although under Dr. Stickney's subsequent care and treatment Socinski recovered from most of the rest of his injuries, he never really got over the injury to his chest, and soon after the accident he began to lose weight. On March 10, 1958, Socinski was well enough to return to work, but he coughed a lot, his chest and throat still pained him, and it hurt him to breathe. Between August 11, 1958 and October 10, 1958, he underwent X-ray examinations and biopsies of his esophagus and vocal cords. The reports from these examinations were negative. In November, 1958, because Socinski failed to improve, Dr. Stickney referred his patient to Dr. Ross, a general surgeon. In December, Dr. Ross performed another biopsy, which disclosed metastatic carcinoma, the spread of cancer, in Socinski's left clavicle. By that time the patient was too weak to be helped, and he died on December 10, 1958.
Doctors Stickney and Ross, testifying for the plaintiff, asserted that the accident could have caused a pre-existing cancer to spread and thus could have hastended death. Dr. Ross also believed that trauma-damaged tissue was more susceptible to carcinoma metastasis than was normal tissue, and that a single blow could cause cancer. He further testified that cancer could be present but undetected for some time. With this last opinion the defendant's medical witness, Dr. Powers, agreed. Ross also believed that a blow could increase the spread of cancer cells. The defendant offered the testimony of two doctors, Williams and Powers. Dr. Williams testified that a blow could not cause cancerous cells to spread, and both doctors for the defense were of the opinion that a single blow could not create a cancer where none had existed previously.
After the evidence had been closed, and during the defendant's summation, the court admitted a page from an investigating officer's report of the accident, which indicated that it was the officer's opinion that the way the defendant had parked his car contributed to the accident.
The administratrix sought to recover damages under the Vermont Survival of Causes of Action Statute, Vt.Stat.Ann.Tit. 14 § 1453 (1958), and the Vermont Wrongful Death Statute, Vt.Stat.Ann.Tit. 14 § 1492 (1958), as amended. At the close of the plaintiff's case and again at the conclusion of all the evidence, the defendant moved for a directed verdict on the grounds that the plaintiff had failed to prove that the defendant was negligent, had failed to prove that the defendant's doings were a proximate cause of Socinski's injuries and subsequent death, and had failed to prove that decedent had been free from negligence. The court denied these two motions and submitted the case to the jury, which returned a plaintiff's verdict. The defendant then moved for a new trial, based on alleged trial errors; and also for judgment notwithstanding the verdict, based on the grounds previously asserted in support of his motions for a directed verdict. The court denied these motions and entered judgment on the verdict. The defendant now appeals to this court from that judgment and from the denial of his post-verdict motions. He asserts, first, that the plaintiff failed to prove a prima facie case and that he is entitled to judgment; second, that even if there were evidence of defendant's negligence sufficient to make out a prima facie case of liability there was no evidence that any negligence of the defendant was the cause of the cancerous condition that caused Socinski's death, and that the court erred in permitting the jury to consider on the question of damages that there was a connection between the accident and the cancerous condition.
Defendant asserts that judgment should be entered for him forthwith because there was insufficient evidence for the jury to find him negligent or for it to find the plaintiff's intestate free from negligence. With this we disagree. There was evidence that the defendant parked his car on the traveled portion of the highway near a curve, leaving insufficient room for other cars proceeding in opposite directions to pass safely. Snowbanks blocked the vision of drivers coming around the curve. The defendant knew that off-street parking was provided for him, and he was aware of the curve in the highway. Considering the evidence in the light most favorable to the plaintiff, as we are required to do in passing on the defendant's contention that he was entitled to a directed verdict, and after verdict entitled to judgment notwithstanding the verdict, there was sufficient evidence for the court to submit the issue of defendant's negligence to the jury.
Also, it was proper for the trial court to permit the jury to decide whether the plaintiff's decedent was exercising due care. Although Vermont now places the burden on the defendant of proving that the plaintiff was contributorily negligent, Vt.Stat.Ann. Tit. 12 § 1024 Supp. 1961, under the law that governs the present case it was the plaintiff's affirmative duty to show that her decedent was exercising due care. However, to avoid a directed verdict, the plaintiff did not have to produce direct evidence of her decedent's care; circumstantial evidence which warranted an inference of due care was sufficient. Benoit v. Marvin, 120 Vt. 201, 138 A.2d 312 (1958). Heustis v. Lapham's Estate, 113 Vt. 191, 32 A.2d 115 (1943). Moreover, a driver has the right to assume others will not act negligently. Miller Chevrolet Co. v. Sears, 118 Vt. 302, 108 A.2d 529 (1954). In this case there was evidence that Socinski was driving 20 to 30 miles per hour, that a curve and a snowbank obstructed his view of the defendant's parked car, and that he applied his brake, slowing his car. From this evidence the jury could have reasonably concluded that Socinski came around the curve at a reasonable speed, suddenly saw the defendant's parked car and the oncoming truck, attempted to squeeze between the two, and collided with the truck. The defendant asserts that the plaintiff's decedent might have driven around the curve too fast, skidded across the center of the highway, and thus hit the truck. Since there was evidence to support the former explanation, the choice between the two theories was for the jury to make. Viewing the evidence in a light most favorable to the plaintiff, Hill v. Stringer, 116 Vt. 296, 75 A.2d 657 (1950), we hold that the defendant's motion for judgment n.o.v. was properly denied. Cf. Slate v. Hogback Mountain Ski Lift, Inc., 122 Vt. 8, 163 A.2d 851 (1960).
The defendant further asserts on this appeal that there was no evidence from which the jury could conclude that the accident caused the decedent's cancerous condition, which hastened his death. Whatever the defendant means by "cancerous condition," there was significant testimony to support a finding that the accident aggravated a pre-existing cancer in the decedent. Three doctors testified that a blow could spread cancer cells. Dr. Ross testified that trauma-damaged tissue was more susceptible to the spread of cancer than was healthy tissue. And there was uncontradicted testimony by two doctors that cancer could be present in the body for some time without detection. The doctors who testified for the plaintiff stated that in their opinion the injuries Socinski received from the collision caused his cancer to spread and thus shortened his life. Other courts have allowed recovery for aggravations of a pre-existing cancer. E.g., Charleston Shipyards, Inc. v. Lawson, 227 F.2d 110 (4 Cir. 1955); Blackfoot Coal & Land Corp. v. Cooper, 121 Ind.App. 313, 95 N.E.2d 639 (1950). Thus, the court below was correct in allowing the jury to consider this issue in determining the amount of the plaintiff's damages.
The defendant contends that the trial judge improperly sua sponte admitted into evidence a certain page, page three, of a police report of the accident. The unusual circumstances surrounding this occurrence require us to reverse the judgment below and remand the case for a new trial. During the course of the trial plaintiff's counsel offered in evidence an official report prepared by Hobart C. Paige, one of the officers who had investigated the accident. Page three of the report stated that the defendant's parked automobile contributed to the collision. Defendant objected to the introduction of page three on the ground that it was hearsay and that it set forth a conclusion which only the jury could draw. The court excluded that part of the report. Later, during the defendant's summation to the jury, the defendant's counsel stated that no officer had said that the parked car was to blame in any way for the accident. The plaintiff objected to this, and, to cure this misleading argument, the court told the plaintiff ...