Gallo v. Simpson Spring Co., s. 7460, 7461.

• Decision Date: 27 December 1935
• Docket Number: Nos. 7460, 7461.,s. 7460, 7461.
• Citation: 181 A. 915
• Parties: GALLO v. SIMPSON SPRING CO. (two cases).
• Court: Rhode Island Supreme Court

181 A. 915

GALLO

v. SIMPSON SPRING CO. (two cases).

Nos. 7460, 7461.

Supreme Court of Rhode Island.

Dec. 27, 1935.

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

Trespass on the case for negligence by Peter Gallo and by Mary Gallo, p. a., against the Simpson Spring Company. Verdict for plaintiff in each case, and defendant brings exceptions.

Judgment in accordance with opinion.

E. Raymond Walsh, of Providence, for plaintiffs.

Henshaw, Lindemuth & Baker, of Providence, for defendant.

CONDON, Justice.

These cases were tried together in the superior court for Providence county before a justice of said court sitting with a jury. The actions are trespass on the case for negligence. The verdict of the jury in each case was for the plaintiff, and these verdicts have been approved by the trial justice after hearing on defendant's motion for a new trial in each case.

These cases are before us on defendant's bills of exceptions, the exceptions being the same in each case, namely, to the refusal of the trial justice to direct a verdict in its favor, to his refusal to charge the jury as requested, to certain parts of the charge as given, and to the denial of its motion for a new trial. We shall consider in this order the points raised by the defendant and take up first the case of Mary Gallo.

The defendant contends that a review of the evidence will show none upon which the jury could reasonably find a verdict for the plaintiff, and upon this contention it rests its first exception. It appears from the record that the plaintiff, a child of 2 1/2 years, was standing beside her mother at the rear of an ice wagon which was stopped on the easterly side of Dean street between Broadway and Carpenter street in the city of Providence when a truck, belonging to the defendant and driven by one of its employees, collided with the plaintiff, causing serious and permanent injury to her.

The defendant contends that the only reliable testimony as to how the accident happened is to the effect that the plaintiff suddenly stepped out or ran out from behind the ice wagon into the path of defendant's truck, and that its driver promptly turned to the right to avoid the plaintiff, but she was struck by the middle or rear part of the truck. This evidence, defendant says, stands uncontradicted, except for the testimony of one Coletta, which it claims is manifestly and inherently false and improbable.

If we could agree with defendant's contention in this respect, we should have no difficulty in following the cases cited by it in support of its motion. But on a motion to direct a verdict for the defendant, all reasonable inferences that can be drawn from the testimony must be drawn in favor of the plaintiff. Jacobs v. United. Electric Rys. Co, 46 R.I. 230, 125 A. 286. And on such a motion, the trial justice is not at liberty to pass upon the credibility of the witnesses or to weigh the evidence. Souza v. United Electric Rys. Co, 49 R.I. 430, 143 A. 780. Coletta's testimony was, therefore, at that stage of the case, to be considered by the trial justice as part of the plaintiff's evidence, unaffected by any belief on his part as to its credibility. From a careful examination of the transcript, we are convinced that there was evidence from which the jury might reasonably find for the plaintiff, and that hence the trial justice did not err in denying the defendant's motion for a directed verdict.

Defendant's reliance upon Conaty v. Galkin, 52 R.I. 410, 161 A. 107, in support of its motion, is not justified by a careful reading of the opinion in that case. There the plaintiff's motion for a directed verdict was granted by the trial justice and his action was upheld by this court because, as was said in that opinion with respect to the defendant: "His self-contradictory testimony and his acts with respect to said stock are so inconsistent with his claim of nonownership of the same as to outweigh his testimony to the contrary, and leaves no credible evidence in support of his defense to the present action." In that case there was no other evidence for the defendant upon which the case could go to the jury. In the instant case, in our view of the evidence, the testimony of Coletta was not inherently false or self-contradictory, and there was other evidence upon which the case should have gone to the jury. Therefore, Conaty v. Galkin, supra, is not in point, and the court in this case did not err in refusing to direct a verdict for the defendant.

The defendant further contends that the trial justice erred in his charge to the jury and in his refusal to grant certain of the defendant's requests to charge. The portions of the charge objected to are set out specifically as follows in defendant's brief: "The real gist of the case is this, did the child stand by its mother out in the street?" "The plaintiff * * * must prove * * * that the facts that the mother has testified to are the true facts. * * * The plaintiff must prove * * * that this child stood in the street. * * * Of course, if that child was behind the ice cart, you and I know that the truck could not hit it. * * * If the child was in a safe position, of course, it would not happen. * * * The mother was perhaps negligent, the mother was perhaps careless. * * * Now if the child was in the street as the mother says it was * * * and you decide that it was standing in the street as the mother says, then you must decide the question, Could the driver * * * have seen the child?" The defendant's contention with reference to these statements of the trial justice and to his refusal to charge as requested by it form the basis for its third, fourth, fifth, sixth, seventh, eighth, and tenth exceptions. These exceptions were argued substantially as one, and we shall therefore consider them together without specifically stating each one.

Throughout the trial justice's charge, it seems to us, was an earnest desire to avoid any statement that would in any way prejudice either side. He seems to have appreciated thoroughly the danger that some chance remark on his part, some characterization of a witness or his testimony, might furnish grounds for a new trial and sought to avoid that circumstance. His statement that the mother of the plaintiff was negligent was not relevant or material to the issue in this case, and in any event it is clear to us that this statement could not have prejudiced the jury against the defendant.

The defendant claims that the above-quoted statements in the judge's charge were equivalent, in effect, to a direction of a verdict for the plaintiff. We cannot agree. On the contrary, taken either singly or in connection with the whole charge, from which they have been culled, we believe that if they constituted error it was only in a very technical sense, and that such error was harmless. At the very outset of his charge, the trial justice sought to dispel from the minds of the jurors all passion and prejudice, if any existed against the defendant. He expressly and explicitly warned the jurors, in the following words, not to permit such feelings to affect their judgment: "Now it is for you to ascertain whether or not the plaintiff's story as to how this thing happened is the true version of it. You are the judges of what the facts are, but you are not the final judges of the facts. You are the judges of what the facts are in this particular hearing, but your findings may be reviewed. You are simply one link in the chain and I am another link in the chain until the chain is finally welded and found to be perfect. I say this to you so that you will be most careful in finding what the facts are, and base your findings upon what the evidence is here, not upon any sympathy for this little child who has been crippled. That should not enter into your determination at all as to how this thing happened. Of course, we all have sympathy for the child, sorry the thing happened, but that is not for us to consider. The thing for us to consider is to ascertain, if possible, whether or not there is any legal liability resting upon this defendant in this case."

Counsel for the defendant in their argument below, as well as before us, and also in their brief, lay much stress on the fact that the mother testified that she had the plaintiff in a safe place, and contend that the trial justice disregarded this testimony in his charge to the jury. They further contend that the effect of this alleged failure of the trial justice to give consideration to this part of the mother's testimony was equivalent to requiring the jury to accept as a fact that the child stood out in the open and in a dangerous part of the street. This contention is not supported by the record. It appears to us that the trial justice sufficiently and fairly covered this phase of the case in his charge. The mother's testimony that she had the child in a safe place was merely a conclusion on her part. It was for the jury to decide this question, and the trial justice carefully and specifically charged them to consider carefully all the evidence bearing on the question of whether the plaintiff was in the street or behind the ice cart. The...