Ferra v. United Electric Rys. Co., 6886.

• Decision Date: 06 July 1931
• Docket Number: No. 6886.,6886.
• Citation: 155 A. 668
• Parties: FERRA v. UNITED ELECTRIC RYS. CO.
• Court: Rhode Island Supreme Court

155 A. 668

FERRA

v. UNITED ELECTRIC RYS. CO.

No. 6886.

Supreme Court of Rhode Island.

July 6, 1931.

Exceptions from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.

Action by Rosario Ferra against the United Electric Railways Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained, and case remitted.

McGovern & Slattery, James A. Higgins, and Louis V. Jackvony, all of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

SWEENEY, J.

This is an action of trespass on the case for negligence in which a jury in the superior court returned a verdict for the plaintiff for $17,000. The case is before this court on defendant's exceptions.

The 49th exception will be first considered. This exception is to the refusal of the trial justice to grant defendant's motion for a directed verdict. The motion is based upon three grounds: (1) That the plaintiff was not in the exercise of due care as a matter of law, and that his failure to use due care was the proximate cause of his injury; (2) that the negligence of the driver of the truck was the sole proximate cause of the collision; (3) that there was no credible evidence of the negligence of the motorman.

The law applying to the consideration of the evidence on a motion to direct a verdict is: (1) That a verdict should not be directed for a defendant if on any reasonable view of the testimony the plaintiff can recover; (2) the question of contributory negligence is generally one for the jury, unless it clearly appears that the only proper inference from the facts and circumstances in the case is that an ordinary prudent person would not have acted as did the plaintiff. Reddington v. Getchell, 40 R. I. 403, 101 A. 123; Gilbane v. Lent, 41 R. I. 462, 104 A. 77. These cases have been cited and followed with approval many times.

The undisputed facts are as follows: Defendant maintains double trolley car tracks on Chalkstone avenue. The track used by the west-bound cars is on the northerly side of the avenue. May 25, 1922, between 7 and 8 o'clock, p. m., there was a collision between a motortruck and a trolley car at the intersection of Chalkstone avenue and Raymond street. The truck was going northerly on Raymond street, and the car was going westerly on Chalkstone avenue. The car was 28 feet long and weighed about 8 tons. The truck was 27 feet long, 7 feet wide, and weighed 5 1/2 tons. It was loaded with three pieces of cut stone, two buttresses weighing one ton each, and a platform weighing 3 1/2 tons. Each stone rested on pieces of wood (size 4" x 4"); the platform stone was on the rear of the truck, and the buttresses were between it and the cab. There was a space of about one foot between each stone. Antonio Bernardo was seated in the cab on the right driving the truck. At his left was his father; his brother was standing on the buttress on the left side of the truck holding onto the stakes back of the cab. Plaintiff was sitting on the buttress on the right side of the truck with his back to the cab and facing the rear of the truck. His left leg was on his left side of the buttress, and his right leg was between the buttress and the platform stone. When the collision occurred between the truck and the trolley car, the platform stone was moved forward about ten inches and crushed plaintiff's right leg against the buttress.

The important issue in the case is which vehicle ran into the other. Plaintiff testified that the first he knew of the collision was when his leg was caught between the stones. He testified that he was familiar with Chalkstone avenue and did not look or listen when the truck was approaching the avenue. Antonio Bernardo, the driver of the truck, testified that the truck was going 5 or C miles an hour as it reached the avenue; that when he was about 50 feet from the northerly car track he saw the trolley car about 225 feet away, approaching at a speed of about 15 miles an hour; that he started to cross the avenue intending to continue northerly on Oakland avenue; that when he was opposite the curb line of Chalkstone avenue the car was about 100 to 125 feet away and had increased its speed on the down grade; that he applied the brakes to his truck; that the car kept coming at increased speed until it was going 30 to 35 miles an hour; that his truck was twisted to the left by the car, and that he could not start the engine after the collision. Two other witnesses for the plaintiff testified as to the constantly increasing speed of the trolley car on the down grade until it struck the front of the truck and pushed it towards the west, and that when the trolley car stopped it was about 35 feet from the truck.

The motorman testified that he had stopped his car at Ayrault street to let off passengers; that he started the car and then shut off the power to let the car coast down grade towards Oakland (Raymond) avenue; that his car was going 8 to 10 miles an hour as it approached the place of the accident; that when he was 8 to 10 feet from Oakland avenue he saw the truck and reduced the speed of his car to 3 to 4 miles an hour; that when he saw the truck coming towards his car he reduced 'its speed as much as he could and threw in the emergency brake and then released it and the car stopped automatically; that the collision occurred about in the middle of the street; that after the accident the front part of the truck was at the side of the car at the fourth window from the front. Testimony of two passengers on the car was introduced tending to show the slow speed of the car as it approached Oakland avenue. It appears in the record that it bad been raining, and there was a question whether the street and rails were so slippery as to affect the control of the truck and the car.

The conflicting testimony as to the speed of the car, and the distance it was from the truck when the truck started to cross Chalkstone avenue, and as to which vehicle ran into the other created issues of fact for the jury. Under the facts testified to by the driver of the truck and the other witnesses for the plaintiff, it could not be held as a matter of law that the plaintiff was guilty of contributory negligence, or that the negligence of the driver of the truck was the sole and proximate cause of the collision. In Hermann v. Rhode Island Co., 36 R. I. 447, 450, 90 A. 813, 814, it was held that the negligence, if any, of the driver of an automobile could not be imputed to a passenger in the automobile. The court also said: "It is the duty of such guest or passenger, in circumstances similar to the one under consideration, to use reasonable care for his own safety. Whether he has exercised such a degree of care is primarily a question for the jury. It cannot be said, as a matter of law, that such guest or passenger is guilty of negligence because he has done nothing. In many such cases the highest degree of caution may consist of inaction." In this case, it cannot be said as a matter of law that plaintiff was bound to anticipate a collision between the truck and the trolley car, or a shifting of the stones on the truck as the result of such a collision. The trial justice did not err when he denied defendant's motion for a directed verdict.

Defendant submitted several requests to charge, two of them being as follows:

"If you find from the evidence that the electric car had reached the point of crossing sufficiently in advance of the truck upon which the plaintiff was riding, then I charge you that the defendant had the right of way at this crossing."

"Although a person riding as a passenger in a vehicle, who has no control over the vehicle, is not chargeable with the negligence of the driver, still, in this case if you find that the negligence of the driver of the truck was the proximate cause of the collision, then I charge you, you cannot find a verdict for the plaintiff."

The trial justice refused these two requests. Each request is a correct statement of a proposition of law applicable to the evidence in the case. The substance of these requests was not included in the general charge. Instead of charging as requested, the trial justice instructed the jury that "the negligence of the driver of the truck enters into this ease only so far as it tends to explain or may tend to prove or disprove that the motorman of the car was negligent." If the negligence of the driver of the truck was the sole and proximate cause of the collision, then the defendant would not be liable. The refusal to charge as requested was prejudicial to defendant, and constitutes reversible error. Exceptions Nos. 51 and 54 must be sustained.

The trial justice instructed the jury that: "If Mr. Ferra handled himself as an ordinary prudent person would and the motorman was negligent,' and the negligence was the proximate cause of this collision, the defendant company is liable. Now, proximate cause means simply this: if the motorman committed any act of...