Bradshaw v. Campbell

• Decision Date: 22 January 1968
• Docket Number: Nos. 197-A,s. 197-A
• Citation: 237 A.2d 547,103 R.I. 319
• Parties: John E. BRADSHAW v. Robert J. CAMPBELL. Lois E. BRADSHAW v. Robert J. CAMPBELL. Lois E. BRADSHAW v. Irene M. CAMPBELL. John E. BRADSHAW v. Irene M. CAMPBELL. ppeal, 198-Appeal, 199-Appeal, 200-Appeal.
• Court: Rhode Island Supreme Court

Page 547

237 A.2d 547

103 R.I. 319

John E. BRADSHAW v. Robert J. CAMPBELL.

Lois E. BRADSHAW v. Robert J. CAMPBELL.

Lois E. BRADSHAW v. Irene M. CAMPBELL.

John E. BRADSHAW v. Irene M. CAMPBELL.

Nos. 197-Appeal, 198-Appeal, 199-Appeal, 200-Appeal.

Supreme Court of Rhode Island.

Jan. 22, 1968.

Reargument Denied Feb. 13, 1968.

Howard R. Haronian, Providence, for plaintiffs

Martin M. Zucker, Providence, for defendants.

OPINION

POWERS, Justice.

These are the defendants' appeals from the judgments of a trial justice granting the plaintiffs' motions for new trials in four companion civil actions for negligence.

The personal injuries for which the wife sues to recover and her husband per quod, allegedly arose out of an incident on May 4, 1962 in the parking lot of a supermarket located at Governor Francis shopping center in Warwick. According to the testimony of plaintiff and her witnesses, defendant wife, operating her husband's car, struck Mrs. Bradshaw on the left side as defendants' car pulled away from the patron's loading area of the supermarket.

According to the testimony of Mrs. Campbell and her witnesses, Mrs. Bradshaw came in contact with the car by tripping, stumbling or a dizzy spell at a time when the car was being loaded and was not moving.

As the trial justice observed in passing on the motions, the cases turned squarely on the issue of credibility. Involved in this issue was the question of whether defendants' car wheels were pointed at an angle to the left as Mrs. Bradshaw approached the car, as she testified, or pointed straight ahead as testified to by defendant wife and an important witness.

The trial consumed several days during the course of which the jury viewed the premises in question. At the conclusion of the trial the jury returned a verdict for defendant in each case.

In the course of conversation with members of the jury after the verdicts had been returned, counsel for plaintiffs learned that during the trial the foreman and another member of the jury had gone to the supermarket parking lot in an effort to satisfy themselves as to which way defendants' car wheels had been pointing immediately prior to impact. He further learned that the foreman's wife had accompanied him on his extrajudicial view.

Within the time authorized by law, plaintiffs filed motions for new trials on the four usual grounds and the further ground that the unauthorized view and experiments constituted conduct on the part of a juror so improper as to taint the jury's verdicts. In support of this latter ground, plaintiffs attached affidavits of the foreman, his wife and the second juror.

The trial justice reviewed the evidence, passed on credibility, and refused to disturb the jury's verdicts on the first four grounds set forth in the motions for new trials. Indeed, he emphasized his conviction that as to these grounds, the jury's verdicts should not be disturbed.

As to the fifth ground, however, the trial justice was constrained to agree with plaintiffs' contention, saying in part, 'Now, here we have the Foreman of a jury who took a view and was met with a conflict during the testimony as to what angle the wheels of the defendant's automobile were at, immediately prior to this accident. And that was an important issue in the case. It may not have been a critical or ultimate issue, but it was important, because it touched again on this credibility problem which infected this case, a real credibility problem all the way through it. And I use the word 'infected' because any case that's got diametrically opposed versions as this one had is infected.'

In granting plaintiffs' motions, the trial justice correctly refused to consider the affidavits of the two jurors. Tucker v. Town Council, 5 R.I. 558 (1859); Phillips v. Rhode Island Co., 32 R.I. 16, 78 A. 342, 31 L.R.A., N.S., 930 (1910); Palumbo v. Garrott, 95 R.I. 496, 188 A.2d 371 (1963).

His judgment on the new trial motions is based solely on the affidavit of the wife of the jury's foreman and its validity is the only issue before us. Her sworn statements are that she accompanied her husband and that '* * * he examined the layout of the area and particular features thereon; and that he performed the experiment of driving a car up to the grocery loading conveyor to determine which way the wheels would be turned while stopped at said conveyor.'

The trial justice based his holding on the authority of Garside v. Ladd Watch Case Co., 17 R.I. 691, 24 A. 470 (1892). There, during the course of the trial, four or five jurors visited the defendant's premises for the purpose of examining a trap door, the nature of which was in dispute. No authorized view was taken by the jury, although the defendant's request for one was twice refused by the trial justice. In the course of their unauthorized...