DiMaio v. Del Sesto

• Decision Date: 19 April 1967
• Docket Number: 10854,Nos. 10853,s. 10853
• Citation: 102 R.I. 116,228 A.2d 861
• Parties: Frank DiMAIO v. Dorothy M. DEL SESTO. James J. DIMAIO, p. a. v. Dorothy M. DEL SESTO. Ex.
• Court: Rhode Island Supreme Court

Page 861

228 A.2d 861

102 R.I. 116

Frank DiMAIO v. Dorothy M. DEL SESTO.

James J. DIMAIO, p. a. v. Dorothy M. DEL SESTO.

Ex. Nos. 10853, 10854.

Supreme Court of Rhode Island.

April 19, 1967.

Bernard C. Gladstone, Providence, for plaintiffs

Gunning & LaFazia, Bruce M. Selya, Providence, for defendant.

OPINION

POWERS, Justice.

These are two actions of trespass on the case for negligence, brought by a father as next friend to recover damages for personal injuries sustained by his minor son and on his own behalf for consequential damages. The cases were tried together before a superior court justice sitting with a jury, which returned verdicts for the defendant. They are before us on each plaintiff's bill of exceptions, but for the reasons that our decision in the case of the minor son will also be dispositive of that of the father, we shall consider the exceptions in the case of the minor son only.

The undisputed evidence discloses that the injuries arose out of an automobile-bicycle collision on Scituate avenue in the city of Cranston on July 25, 1964 at approximately 3:30 in the afternoon. The weather conditions were ideal and the highway was dry.

It is also uncontradicted that just prior to the accident, plaintiff James J. DiMaio, who was nine years old at the time and who lived on the southerly side of Scituate avenue, had ridden his bicycle from his home across Scituate avenue in a northeasterly direction to a mail box some 75 feet east of the DiMaio home and on the northerly side of Scituate avenue. Said avenue is approximately 50 feet in width.

The testimony of the parties as to how the collision occurred, however, is sharply contradictory. The plaintiff testified that after leaving the mail box, he proceeded easterly along the northerly line of Scituate avenue for a distance of something less than 75 feet, stopped while two motor vehicles passed, looked to his left and his right, observed no traffic and then turning to his right started to cross the avenue to the southerly side. Continuing, he testified that about half way across, he heard the screech of brakes of a car that he did not see, applied the hand brakes of the bicycle, took one foot off the pedals placing it on the ground to maintain his balance, and was struck.

His mother, who testified that she witnessed the entire incident form the driveway of their home, corroborated plaintiff's testimony in every detail. The police officer who later that evening talked to plaintiff and both his parents did not recall the mother stating at that time that she had been a witness to the accident and his report contained no such reference.

In her testimony given at the trial, plaintiff's mother stated that her son was well across Scituate avenue when the operator of defendant's car came over the brow of the hill and passed her at a fast rate of speed.

Bobert M. Del Sesto, defendant's son, and operator of the car involved, testified that Scituate avenue slopes from just west of plaintiff's home to an intersection with Phoenix avenue where there is a traffic stop sign, a distance of some 500 feet. He stated that as he started down said slope, he reduced his speed form 25 miles an hour because of the stop sign; that he observed plaintiff of his bicycle also of traveling easterly but on the left-hand side of the road; that the boy was some four to five car lengths in front of him; and that he suddenly made a sharp turn to his right, headed in the direction of defendant's car.

The operator further testified that he applied his brakes and stopped within a car length and a half; but plaintiff, making no effort to stop, struck defendant's car on the left side about at the driver's door, just beyond the rearview mirror. All of the evidence, including pictures admitted as exhibits, establish that this was the point of impact with the car.

Marie Lavorante, a passenger in defendant's car, more or less corroborated the driver's testimony as to where and how the collision occurred, tended to contradict plaintiff's evidence of screeching brakes, but did not see plaintiff until just before he struck the car.

In any event, the jury returned verdicts for defendant, and plaintiff in support of his bill orally argued and briefed thirteen exceptions. Eleven of these are to evidentiary rulings and none of them has merit.

Without unduly extending this opinion we note that several of these exceptions were to the sustaining of defendant's objections to questions asked by plaintiff who then made no offer of proof, Arden Engineering Co. v. E. Turgeon Constr. Co., 97 R.I. 342, 197 A.2d 743; one was to the admission of pictures taken of the car, plaintiff's objections being to statements by the trial justice made in explanation of his ruling to the jury, the context of which is in nowise prejudicial to plaintiff; another relates to the exclusion of medical testimony and since the jury never reached the question of damages it is immaterial that the testimony was not admitted, Domestic Petroleum, Inc. v. C. L....