Gillogly v. New England Transp. Co.

• Decision Date: 26 February 1948
• Docket Number: No. 8795.,8795.
• Citation: 57 A.2d 411
• Parties: GILLOGLY v. NEW ENGLAND TRANSP. CO.
• Court: Rhode Island Supreme Court

57 A.2d 411

GILLOGLY

v.NEW ENGLAND TRANSP. CO.

No. 8795.

Supreme Court of Rhode Island.

Feb. 26, 1948.

Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Action of trespass on the case for negligence by Mae L. Gillogly against New England Transportation Company to recover for injuries sustained when a passenger on defendant's bus. Judgment for plaintiff, and defendant brings exceptions.

Case remitted for new trial on all issues unless plaintiff should file remittitur.

William B. Sweeney and Sherwood & Clifford, all of Providence (Sidney Clifford and Raymond E. Jordan, both of Providence, of counsel), for plaintiff.

William E. Boyle and William J. Carlos, both of Providence, for defendant.

CAPOTOSTO, Justice.

This action of trespass on the case for negligence was tried on the superior court before a justice thereof sitting without a jury. He decided for the plaintiff and fixed the damages at $12,000. The case is before us on defendant's exceptions under which it claims that the decision is against the law and the weight of the credible evidence; that the trial justice erred in the admission and exclusion of evidence; and that the damages are excessive.

The following facts are either undisputed or clearly established by the evidence. The plaintiff, an unmarried woman about fifty-three years of age, was a hairdresser by trade and the owner of two beauty shops, so called, one in the city of Providence and the other in Narragansett Pier in this state. She was also chairman of the state board of hairdressing, the duties of which office she performed in addition to her work as an operative in one or the other of her shops. On January 28, 1942 plaintiff paid her fare in Providence and became a passenger on a Boston bound bus of the defendant, a common carrier of passengers. After leaving the state line at Pawtucket, Rhode Island, the bus traveled north on the easterly lane of a four-lane cement highway until it reached North Attleboro, Massachusetts, where an automobile sedan, which was traveling south on that highway, collided with it.

The weather and road conditions were bad. It was snowing or sleeting, and the highway was icy and slippery. The bus had no chains on its wheels. At the place of the accident and easterly of the easterly side of the northbound cement lane of the highway there was a space that extended some five feet to a series or rectangular cement posts, about five or six inches thick, and set at intervals of approximately ten feet, through which a metal cable was inserted to serve as a guard rail. Beyond these posts there was a drop to lower land. When the bus came to a stop after the accident, seven of the posts had been knocked down. The bus was then leaning towards its right at a pronounced angle, with its rear wheels on the easterly shoulder of the highway and its front wheels down the incline. At that time the sedan, facing east, was stopped crosswise on the westerly lanes of the highway. The damage to the bus was confined to its left front corner, while the top of the sedan was torn off and its right side almost entirely demolished.

The evidence is in serious conflict as to the speed and control of the bus and as to the real cause of the accident. The evidence for the plaintiff was to the effect that the bus was traveling at a fast rate of speed, estimated at some 45 or 50 miles an hour, swaying from side to side and skidding on the icy highway; that, although the vision of the plaintiff and the other passengers who testified for her was obscured to a considerable extent by snow on the windows of the bus, they saw it pass a number of cars going in the same direction and almost collide with one of them; that none of these witnesses saw the sedan before the accident; that suddenly the bus lurched heavily to its right and came to a stop at the place and in the manner hereinbefore described; and that the plaintiff was thrown violently to the floor of the bus and seriously injured. We shall refer to plaintiff's injuries later.

In general terms the defendant's claim was that, while the bus was traveling at a moderate rate of speed on its extreme right of the highway, the sedan suddenly skidded across the highway, and its right side struck the left front corner of the bus. In other words, the defendant's contention was that the accident was unavoidable and without any negligence on its part. Under such a claim a brief statement of certain testimony for the defendant is advisable.

The driver of the bus testified that it did not sway or skid at any time; that the only car he remembered passing shortly before the accident was an army car, which was moving at not more than 20 miles an hour; that he was then traveling about five miles an hour faster than the army car; that just prior to the accident his speed did not exceed 25 miles an hour; and that he did not know how far the sedan was from the bus when he saw it begin to skid, as his attention was then centered on operating the bus to avoid an accident. He further testified that as soon as he saw the sedan go into a skid he pulled over on to the easterly shoulder of the highway and began applying the brakes; that he ran some 75 feet on the shoulder before he struck the posts at the side of the highway; and that he did not know how many of those posts were knocked down before the bus came to a stop. This testimony was supported in part by that of two passengers, one of whom fixed the speed of the bus merely as moderate, and the other at not more than 30 miles an hour.

The defendant also called as a witness its district claim agent who testified that, shortly after the accident, he interviewed the plaintiff and three of her witnesses; that each one told him how the accident happened and that, in their presence, he reduced to writing their respective statements; that the plaintiff and two of those witnesses signed and swore to the written statements, but that the other witness refused to sign on objection by her husband. The statements were all admitted in evidence and tended to contradict the testimony of the plaintiff and her witnesses. However, each of these persons explained the circumstances in which they were interviewed by defendant's claim agent and specifically denied saying certain things incorporated in the statements. A similar situation arose with reference to the testimony of a sergeant of the North Attleboro police respecting oral statements made by some of plaintiff's witnesses at the scene of the accident.

Captain Kenneth B. Newton, who was in the army car mentioned by the bus driver, testified for the defendant by deposition. The material part of his testimony was that he was traveling at about 20 miles an hour when the bus passed his car at about 30 miles an hour; that, shortly after the bus had passed, he noticed the sedan, which was coming from the opposite direction, go into a skid and veer towards his side of the road; that the sedan was then 200 or 300 feet from the bus; that the right side of the sedan struck the left front of the bus; that when he stopped at the scene of the accident he assisted several of the passengers and the driver out of the bus; and that he took one of those passengers, a woman whom he did not know, to a hospital in the army car. The woman in question was the plaintiff.

Alfred Ricci, a passenger in the sedan, testified for the plaintiff in rebuttal. His testimony in substance was that the sedan skidded on to the first and secnd lanes for northbound traffic when the bus was 200 or 300 feet away; that after the skid had stopped, the sedan, which was then in the path of the bus, moved straight ahead for some 200 feet before the bus struck it in the rear.

On this evidence as to defendant's liability to its passenger, the trial justice found, among other things, that the defendant was guilty of actionable negligence. The rescript contains a number of findings of fact on this issue, the most pertinent of them being that before and at the time the sedan began to skid, and for a period thereafter, the bus was being operated at an excessive and dangerous rate of speed in the existing circumstances, and that during such time the bus was not under reasonably effective control. On such findings he held that the conduct of the bus driver was a substantial and proximate cause of the accident as far as the plaintiff passenger was concerned.

The defendant contends, first, that the trial justice misconceived or overlooked material evidence; and, secondly, that he applied the wrong rule of law. We shall consider these contentions in the order stated keeping in mind that the plaintiff was a passenger on the bus. As to the facts, the defendant in substance...