Berman v. King Union Co., s. 9306

• Decision Date: 29 January 1953
• Docket Number: 9307,Nos. 9306,s. 9306
• Citation: 80 R.I. 181,94 A.2d 428
• Parties: BERMAN v. KING UNION CO., Inc. (two cases). Ex.
• Court: Rhode Island Supreme Court

Page 428

94 A.2d 428

80 R.I. 181

BERMAN v. KING UNION CO., Inc. (two cases).

Ex. Nos. 9306, 9307.

Supreme Court of Rhode Island.

Jan. 29, 1953.

Robert N. Greene, Providence, for plaintiffs.

Sherwood & Clifford, Sidney Clifford and Raymond E. Jordan, Providence, for defendant.

CAPOTOSTO, Justice.

These two actions of trespass on the case for negligence were brought by a husband and wife to recover damages resulting from a collision between an automobile owned by the wife, but driven by the husband, and defendant's automobile. The two cases were tried together before a jury in the superior court and at the conclusion of the evidence for plaintiffs the trial justice granted defendant's motion for a nonsuit in each case. Both cases are before us on the exception of the respective plaintiffs to such rulings. Unless otherwise indicated, we will treat the two cases as if only that of the husband were before us, our statement of the facts, however, applying to both cases.

The accident occurred in the early afternoon of June 25, 1951 at the corner of Whiting street and Morris avenue, public highways in the city of Providence. These vehicles will hereinafter be called cars as they are so denominated in the transcript. The physical conditions at the southwest corner of the intersection in question deserve particular consideration. Generally speaking, Morris avenue at the place of the accident runs north and south with Whiting street entering but not crossing it at a right angle from the west. Both streets are wide enough for three cars, are curbed and have sidewalks, with the exception that for some undisclosed reason there is no sidewalk at the southwest corner on Morris avenue where foot passage is obstructed by brush and other conditions. At the property line at that corner there is an embankment, about four feet high, with a tree and shrubbery thereon. The plaintiff admitted that he was familiar with such obstruction and that it presented an unusually blind corner to the driver of a car on Whiting street who intended to make a right turn and proceed south on Morris avenue.

It appears in evidence that Saul Berman was the driver of plaintiff's car; that it was registered as owner in the name of his wife, who was sitting in the front seat with him at the time of the accident; and that she had permitted him to use the car to go to his office on Medway street, which is south of Whiting street. The defendant's car was driven by a Mrs. Smith, who had two children beside her on the front seat.

Omitting references to discrepancies of a minor nature and viewing the testimony of the plaintiff most favorably to him, as the trial justice was bound to do under our settled rule governing a motion for a nonsuit, we summarize the evidence of record as follows. On the way to his office on Medway street the plaintiff drove the car in an easterly direction on the right side of Whiting street at a slow rate of speed, intending to turn right or southerly on Morris avenue. Knowing the dangerous condition of the intersection at the southwest corner he brought the car to a full stop when its front end was at the curb line of Morris avenue. With the car in that position he could see traffic conditions on Morris avenue to his left but not to his right because of the embankment, tree and shrubbery hereinbefore described. Seeing no vehicle approaching the intersection from his left, he started the car and began edging out beyond the curb line of Morris avenue at a speed of from one to two miles an hour, turning to his right and close to the southwest corner so that he might proceed southerly on that street to his destination.

When the front end of plaintiff's car, thus turning, had entered sufficiently into Morris avenue to clear the obstruction at the above-mentioned corner plaintiff saw defendant's car, which was moving north towards the intersection at a fast rate of speed, a short distance from him with its left wheels well over the center line of Morris avenue. Confronted with such a situation plaintiff stopped immediately, while the driver of defendant's car did nothing to alter the course or control the speed of that car. The result was that within a second or two defendant's car struck the left side near the front of plaintiff's car and finally came to a stop approximately 100 feet from the point of collision.

The evidence is clear that there was nothing on Morris avenue in the vicinity of the intersection to prevent the driver of defendant's car from using her own right side of the highway; that at the time of the accident only the front part of plaintiff's car was in Morris avenue; that the force of the collision pushed it back almost completely into Whiting street; and that both cars were damaged on their respective front and left sides. There is no evidence of any warning signal from defendant's car in approaching the intersection.

The trial justice granted defendant's motion for a nonsuit in each case on the following grounds, which are the only ones presently before us for review. In the case of Saul Berman he found...