Bourre v. Texas Co.
| Decision Date | 11 March 1931 |
| Docket Number | No. 6669.,6669. |
| Citation | 154 A. 82 |
| Parties | BOURRE v. TEXAS CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.
Action of trespass on the case by Arthur Bourre, by next friend, against the Texas Company. There was a verdict for defendant, the trial justice denied a motion for a new trial, and plaintiff brings exceptions.
Exceptions overruled, and case remitted for entry of judgment.
Eugene L. Jalbert, of Woonsocket, for plaintiff.
John R. Higgins, of Woonsocket, for defendant.
This action of trespass on the case for negligence is brought to recover damages for injuries sustained by plaintiff when run over by one of defendant's motor trucks. Henri J. Bourre, plaintiff's father, also brought an action against defendant to recover consequential damages. 154 A. 86. These two cases were before this court in 1928 on defendant's exceptions. Bourre v. Texas Co., 49 R. I. 364, 142 A. 621, and new trials were ordered. The cases were again tried together and are again before this court on exceptions.
In the case of Henri J. Bourre the jury returned a verdict for the plaintiff for $15,000. The trial justice granted defendant's motion for a new trial and there is to be another trial of the case.
In this case the same jury returned a verdict for the defendant. In each case the jury answered three special findings. Plaintiff filed a motion for a new trial on the grounds that the verdict was against the law and the weight of the evidence. This motion was heard and denied by the trial justice. The case is now before this court on the plaintiff's exceptions to this ruling; to the denial of plaintiff's requests to charge; to the granting of defendant's requests to charge; and to certain portions of the charge.
The first exception considered is the one to the denial of plaintiff's motion for a new trial. The principal issues of fact in this case were whether plaintiff crossed Greene street in front of defendant's truck or back of it. Plaintiff testified that he crossed in front of the truck. The testimony for defendant was that plaintiff crossed back of its truck. The jury found specially that when plaintiff crossed Greene street (1) he did not pass in front of the truck; (2) he passed in back of the truck; (3) that, if he did pass in front of the truck, he fell after he got entirely across the path of the on-coming truck. The jury also returned a general verdict of not guilty for defendant.
Plaintiff claims that the verdict is against the great weight of the evidence; that the special findings are inconsistent with the general verdict; that the verdicts of the same jury—one for the defendant and the other for the plaintiff—are inconsistent because they are based upon the same evidence as to liability. This manifest inconsistency between the verdicts has been rectified by the decision of the trial justice setting aside the verdict for the plaintiff Henri J. Bourre on motion of the defendant. No exception was taken to this decision by Henri J. Bourre.
Plaintiff contends that the third special finding is inconsistent with the other two findings and the general verdict. The contention cannot be sustained. This finding is not determinative of any issue in the case. The jury did not find that plaintiff crossed in front of the truck. This special finding was allowed, and the jurors were instructed to answer it. They gave the correct answer, as the uncontradicted testimony of the plaintiff was that he had crossed the path taken by the truck before he fell. The answer would be correct even if plaintiff admitted that he passed in back of the truck, for it is undisputed that he fell on the right side of the truck.
In considering the claim that the verdict is against the great weight of the evidence, it is necessary to give a brief summary of it. The facts and circumstances leading up to the injury of the plaintiff were fully stated in our former opinion, Bourre v. Texas Co., supra. February 4, 1926, about 11:30 o'clock a. m., the right rear wheel of defendant's motortruck struck and seriously injured the left ankle of the plaintiff. Plaintiff was 9 years, 7 months, old at the time. He was on his way home from school. It was snowing, and the wind was blowing from the north. Plaintiff had walked in a southerly direction on the westerly side of Park avenue until he came to its intersection by Greene street. At this intersection it was necessary for plaintiff to walk in a southwesterly direction, about 54 feet, across Greene street to a crosswalk. Plaintiff looked to his right and saw defendant's truck about 140 feet away, coming slowly up the hill on Greene street and making a loud noise. Plaintiff testified that he thought he could cross Greene street before the truck would reach him; that he started to cross the street with the snow up to his knees; that he saw the truck in the middle of the road; that he had almost reached the crosswalk when he slipped and fell; that the truck was close to him, that he got up, took a few steps and slipped and fell again face forward and that the right rear wheel of the truck ran over his left ankle. He testified that he had time to cross the street before the truck could reach him if he had not fallen and that the whistle on the truck was blown as he fell the first time. Plaintiff denied that he was trying to get on the truck when he fell and was injured. The driver of the truck testified that it was snowing hard as he was driving the truck up the hill on Greene street; that the wind was back of him; that there was no snow on his windshield, and that he had an unobstructed view ahead of him; that the snow was deeper on the side of the road than in the center; that his truck was loaded with gasoline and weighed about 8 1/2 tons; that he had chains on the rear wheels; that the truck was in low speed and making between 3 and 4 miles an hour and the engine was making a loud noise; that he was familiar with this section of the city and blew the whistle on the truck as it approached Park avenue; that he was observing the road and no one crossed in front of him as he approached Park avenue; that he kept a straight course 7 to 8 feet from the right curb; that he did not see the plaintiff until after his truck had crossed the intersection when he stopped it within 3 feet after some one shouted to him and he got out and saw plaintiff close to the tracks made by the truck about 7 feet from the crosswalk; that he walked back, picked up the plaintiff, and brought him into a nearby store, and that he had no knowledge until then that his truck had hit the plaintiff. He further testified that when he was in the store he asked the plaintiff how it happened and he said that he fell off the truck and that a week later at the hospital he said he fell into a pile of snow, got up, and the second time he fell under the wheel. Two hoys testified that as they were walking in a northerly direction on the westerly side of Park avenue they saw the truck coming up the hill on Greene street. One of the boys testified that the truck was coming slower than a man would walk; that he saw the plaintiff run from the corner and pull himself up on the truck and sit backwards; that nobody passed in front of the truck; that he paid no more attention to the plaintiff until attracted by a cry from him when he was on the ground near the right rear wheel of the truck. The other boy testified that nobody passed in front of the truck and that when he saw the plaintiff he was on the ground. This is tue boy who called to the driver of the truck to stop. Plaintiff produced three witnesses who testified that defendant's driver said he did not see plaintiff because his windshield was covered with snow. Defendant's driver denied making these statements.
The conflicting testimony above narrated presented issues of fact to be determined by the jury. The jury decided the issues in favor of the defendant by their verdict and special findings. The trial justice has approved the verdict. Plaintiff argues that the...
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