Colvin v. Goldenberg

• Decision Date: 18 February 1971
• Docket Number: No. 1126-A,1126-A
• Parties: Robert COLVIN v. Earl GOLDENBERG. ppeal.
• Court: Rhode Island Supreme Court

Page 663

273 A.2d 663

108 R.I. 198

Robert COLVIN v. Earl GOLDENBERG.

No. 1126-Appeal.

Supreme Court of Rhode Island.

Feb. 18, 1971.

Edward D. Feldstein, Providence, for plaintiff

Israel Moses, Warwick, for defendant.

OPINION

KELLEHER, Justice.

This suit was commenced in July 1964 as an action for trespass on the case for negligence. It was tried in October 1968 before a justice of the Superior Court sitting without a jury as a civil action under the court's new rules of civil procedure. The trial justice found for the plaintiff and awarded him $1,386.60. Thereafter, the defendant's motion for a new trial was denied and he instituted this appeal. ¹

The suit was brought to recover damages for injuries sustained by plaintiff in an automobile accident which occurred on December 24, 1962 at approximately 10:30 a.m. on Broad Street near Winter Street in Providence. The plaintiff contends that he sustained his injuries when, while crossing from the easterly to the westerly sidewalk of Broad Street, he was struck by an automobile owned and operated by defendant.

The only witnesses who testified to the nature of the mishap were the litigants. While most of their testimony was in direct conflict, there was agreement on some physical facts. Where Broad Street meets Winter Street it runs in a general northerly and southerly direction. Winter Street runs from the westerly side of Broad Street towards the west. There is an intersection at this location. It is formed by a third public highway called Lockwood Street. Lockwood Street runs from the easterly side of Broad Street towards the east. Traffic at this location is controlled by a signal light.

Colvin testified that when he crossed Broad Street, he used the crosswalk. He said he waited until the light turned green before he started to cross the street. There were two cars headed easterly on Winter Street that had stopped at the red light. When the light turned green, Colvin began to walk across the street. When he was within eight feet of the westerly curb of Broad Street, he stopped to allow the two cars which had stopped at the light to proceed from Winter Street southerly onto Broad Street. Once the two cars had passed him, Colvin described how a third car (defendant's) then came out of Winter Street onto Broad Street and struck him. Colvin testified that immediately after he was hit defendant told him that he did not see plaintiff because he was looking out at the traffic light.

The defendant Goldenberg gave the trial justice a much different tale. He claimed that his was the first automobile that was stopped on Winter Street waiting for a change in the light. When the light turned green, he moved slowly from Winter Street to Broad Street past the crosswalk. It was at this point, Goldenberg said, that he observed a man standing between two cars which were parked alongside the westerly curb. This person, defendant testified, seemed to be walking to the westerly sidewalk with his back to the southbound Broad Street traffic. Upon hearing a 'slap' on the right side of his car, Goldenberg stopped and left his automobile. He then discovered Colvin getting up from the road. The defendant insisted that the collision did not occur on the crosswalk.

A physician who treated plaintiff described his patient's injuries as 'painful.' The plaintiff suffered a deep laceration to his right knee, multiple contusions and abrasions, a sprain of the left thigh and bursitis of the left knee. At the time he was injured, Colvin was employed as a supervisor of the stock department of a large manufacturing concern. He was out of work for a period of over three months.

We find no merit in defendant's contention that plaintiff's contributory negligence bars him from recovery in this suit. This court has repeatedly held that with rare exception the issue of contributory negligence in a case is a question of fact. Waltz v. Aycrigg, 103 R.I. 109, 235 A.2d 338; Ferretti v. Berry, 96 R.I. 67, 189 A.2d 344; Westfield v. Yellow Cab Co., 94 R.I. 206, 179 A.2d 501. Although in Ferreira v. McGrath Truck Leasing Corp., 104 R.I. 642, 247 A.2d 842, we did say there are 'unique' cases where a person can be held to be contributorily negligent as a matter of law, the case at bar cannot be so classified. Here, the defendant made no motion to dismiss as he might have done under the provisions of Super.R.Civ.P. 41(b)(2). Instead, he hoped that he had convinced the trial justice that Colvin had hit his car, not that he had hit Colvin. The trial court, however, believed that plaintiff was proceeding along the crosswalk in obedience to the green light, that he had stopped to let the two cars he described come out of Winter Street onto Board Street and that it was after this time that defendant struck plaintiff when he was on the crosswalk. The trier of fact, therefore, expressly found that plaintiff was in the exercise of due care. We have examined the record and find no reason whatever to disturb this finding.

During the trial, it was brought out that while he was disabled, plaintiff received weekly payments of money from two different sources which he described as social security benefits and money paid him by an insurance company through some type of group insurance funded by plaintiff's employer. The defendant argues that the trial justice should have deducted all of this money from the damages he awarded plaintiff. Such a contention flies in the face of the collateral source doctrine which has become a well-established part of the Rhode Island law. ² This rule requires a tort-feasor to pay in full the damages suffered by the injured person without credit for any amounts received by the injured person from sources independent of the defendant. The rationale of this rule is that the injured person is entitled to be made whole, since it is no concern of the tort-feasor that someone else completely unconnected with the tort-feasor has aided his victim because of a duty assumed by contract or imposed by law or some genuine benevolent motive on the part of the donor. Pemrock, Inc. v. Essco Co., 252 Md. 374, 249 A.2d 711; Patusco v. Prince Macaroni, Inc., 50 N.J. 365, 235 A.2d 465.

The only phase of defendant's appeal which deserves and requires any extended discussion is his claim that the trial judge erred in denying his motion for a new trial. This observation is not prompted by anything offered by defendant in support of his assertion but, because as it has been so well argued and briefed by plaintiff, this phase of defendant's appeal presents a question of first impression in this state which was alluded to in Danal Jewelry Co. v. Fireman's Fund Insurance Co., R.I. 264 A.2d 320, but never decided. The issue to be resolved is whether a motion for a new trial lies under Super.R.Civ.P. 59(a) in an action tried without a jury. The answer is that such a motion is in order.

Prior to the adoption of the new rules, the sole ground for a new trial in jury-waived law action was newly discovered evidence. See G.L.1956 (1969 Reenactment) § 9-23-2; Thrift v. Thrift, 30 R.I. 456, 76 A. 105. With the exception of a motion based on this particular ground, once a decision had been entered by a court sitting without a jury, all control of the case was lost and the sole remedy for any alleged error was in the Supreme Court by way of a bill of exceptions. Once the trial justice's decision was entered on the docket, he could not thereafter revise or change his decision. Everett J. Horton & Co. v. Grinnell, 61 R.I. 457, 199 A. 315; Whitford, Bartlett & Co. v. Townsend, 32 R.I. 392, 79 A. 960; Ashaway Nat'l Bank v. Superior Court, 28 R.I. 355, 67 A. 523. This rule no longer controls because Rule 59(a)(2) provides that a new trial may be had in a civil action tried without a jury for any of the reasons for which an equity court in this state might grant a petition for rehearing.

While in Rounds v. Tefft, 96 R.I. 274, 190 A.2d 727, this court has held that § 9-23-2 with its provision for a new trial in jury-waived cases for newly discovered evidence did not apply to a suit in equity, it has never set forth with any degree of clarity definitive reasons which could be considered as sufficient cause for a rehearing in an equity suit. In absence of any clear-cut rules in this regard, we have examined the cases in this state wherein a rehearing was sought. All such cases were decided in the mid and late eighteen hundreds. The first petition for a rehearing to be considered by this court was filed in Hodges v. New England Screw Co., 3 R.I. 9 (1853). In a most informative opinion written by Chief Justice Greene it was pointed out that under the English chancery practice an application for a rehearing could be made any time between the entry of a decree and its enrollment. However, since enrollment was not practiced in this state, the court decided that even though a decree might have been entered, an application for a rehearing would lie. As to the causes for a rehearing, the court stated that a rehearing might be allowed upon the presentation of a certificate of counsel. This was the practice in England, the court observed, which had been adopted by the Circuit Courts of the United States and the courts of the several states.

The court in Hodges said that the grant of a rehearing was a matter of discretion with the discretion being liberally exercised in favor of a rehearing. This sentiment was once again expressed in Randall v. Peckham, 11 R.I. 600 (1877). ³ It must be kept in mind, however, that at the time of Hodges and Randall and up until 1905, this court had original jurisdiction of equity causes. There was no appeal. ⁴ Any error had to be corrected by filing with this court either a petition for a rehearing or a bill of review. Later, in Philip Allen & Sons v. Woonsocket Co., 13 R.I. 146 (1880), this court in denying a petition for rehearing by the respondent refused to consider a newly offered defense...