Dembicer v. Pawtucket Cabinet & Builders Finish Co., Inc.

• Decision Date: 20 July 1937
• Docket Number: No. 7790.,7790.
• Citation: 193 A. 622
• Parties: DEMBICER v. PAWTUCKET CABINET & BUILDERS FINISH CO., Inc.
• Court: Rhode Island Supreme Court

193 A. 622

DEMBICER

v. PAWTUCKET CABINET & BUILDERS FINISH CO., Inc.

No. 7790.

Supreme Court of Rhode Island.

July 20, 1937.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Action of trespass for negligence by Louis Dembicer against the Pawtucket Cabinet & Builders Finish Company, Incorporated. Directed verdict for defendant, and plaintiff excepts.

Exception overruled, and case remitted for entry of judgment on verdict.

Max Winograd and William J. Carlos, both of Providence, for plaintiff. Sherwood & Clifford and Raymond E. Jordan, all of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action of trespass on the case for negligence arising out of a collision in the daytime of December 15, 1930, between the automobile of the plaintiff and the defendant's truck at the intersection of Division and School streets in the city of Pawtucket. The plaintiff seeks to recover for personal injuries to himself and for damage to his automobile. At the conclusion of the testimony for the plaintiff, the defendant rested its case and moved for a direction of verdict in its favor. This motion was granted by the court and the plaintiff duly excepted. The case is before us on this single exception to this action of the trial justice.

School street runs north and south. Division street intersects School street from east to west, with a considerable downgrade to and beyond this intersection as one proceeds in a westerly direction. There is a substantial brick building that comes out to the street lines at the northeast corner of the intersection of the two streets. The testimony shows that on the day in question, the plaintiff, in company with one Hyman Koch, was driving a Ford sedan in a southerly direction on School street at a speed of between seventeen and eighteen miles an hour; that he diminished this speed as he approached the intersection; that when he reached a point on School street at or about even with the line on Division street of the brick building at the northeast corner of the intersection, which would be on his left as he was proceeding along School street, he saw an automobile on Division street to his left coming downgrade, some five, six, or ten feet from the intersection; that he then looked to his right and saw the defendant's truck "quite a ways down" Division street, coming upgrade towards the intersection; that the automobile from his left entered the intersection and, making a left turn in front of him, proceeded southerly on School street in the same direction that he was going.

What the plaintiff did after this automobile passed in front of him is best shown by the following quotations from his testimony:

"Q. Did you again observe this car (the defendant's truck) coming from your right? A. While I was going across the intersection, oh, it must have been about the length of this room here, about twenty five (25) or thirty (30) feet down." (Italics ours.)

"Q. Was that when you proceeded across the intersection? A. Yes.

"Q. Can you tell us the extent of your speed crossing the intersection? A. About twelve (12) miles an hour.

"Q. What did you do then in reference to the condition of traffic? A. Well I kept looking ahead, and as I was three quarters over the intersection, just turned to the right, this car hit me just at that time, this truck that was coming up the hill.

"Q. You had your foot on the brake when this other car was coming from your right, the truck was coming from your right? A. From the right, yes.

"Q. Why didn't you stop? A. Well I was more than half way over, and I was sure I could pass. I didn't think that the truck would come up so fast, all of a sudden." (Italics ours.)

There is nothing in the evidence to show what the speed of the truck was, or that its speed was in any way increased immediately before the accident.

In recross-examination, the plaintiff's testimony on this point is as follows:

"Q. You weren't in the intersection when this other machine turned around in front of you, were you? A. No, that is the time I was on the corner.

"Q. You had already seen the truck at that time? A. I did.

"Q. And when this machine rolled across, you looked to the right then, and that was before you started across, and saw this truck twenty five (25) or thirty (30) feet away? A. I was rolling at that time.

"Q. But you hadn't entered the intersection at that time? A. I was on the intersection; yes, I was."

The witness Koch, who was riding on the front seat with the plaintiff, testified that when the plaintiff's car reached the property line at the intersection he saw the defendant's truck some thirty or thirty-five feet away, coming up the hill; that the next thing he knew was that the plaintiff's car and the truck collided on the intersection; and that he at no time saw any automobile enter the intersection from the left in front of the plaintiff.

This court has repeatedly held that in a case of this kind, the plaintiff cannot recover unless the evidence shows that he himself was in the exercise of due care; that is, care commensurate to the danger known or to be reasonably apprehended and such as a person of ordinary prudence would exercise under the same or similar circumstances. Excepting cases in which the doctrine of the last clear chance applies, this rule governs in all other instances. In these days of rapid transit, when motor vehicles are constantly and quickly 'changing the complexion of traffic, it is a matter of common knowledge that a highway intersection, particularly in centers of population, is a place where greater danger than on any other part of the highway is reasonably to be apprehended.

The duty to exercise due care, that is,...