Gordon v. Campanella Corp., 1768-A

• Court: United States State Supreme Court of Rhode Island
• Citation: 112 R.I. 417,311 A.2d 844
• Docket Number: No. 1768-A,1768-A
• Parties: Jane E. GORDON v. CAMPANELLA CORPORATION. Sherry M. MARIN v. SERVICE CONTRACTING, INC. (two cases). Sheri GORDON, p.p.a. v. CAMPANELLA CORPORATION. ppeal.
• Decision Date: 14 November 1973

Page 844

311 A.2d 844 112 R.I. 417 Jane E. GORDON
v.
CAMPANELLA CORPORATION.
Sherry M. MARIN
v.
SERVICE CONTRACTING, INC. (two cases).
Sheri GORDON, p.p.a.
v.
CAMPANELLA CORPORATION. No. 1768-Appeal. Supreme Court of Rhode Island. Nov. 14, 1973.

[112 R.I. 426]

Page 846

Matthew Ward, John F. McDonough, Providence, for plaintiffs.

Hinckley, Allen, Salisbury & Parks, Ernest C. Torres, Providence, for defendant Campanella Corp.

Jordan, Hanson & Curran, A. Lauriston Parks, Providence, for Service Contracting, Inc., third-party defendant.

OPINION

KELLEHER, Justice.

This negligence action arose as a result of an automobile collision in Newport. The plaintiffs are Jane E. Gordon, her husband John, ¹ and their daughter, Sheri (the Gordons). The defendant, Campanella Corporation (Campanella), impleaded Service Contracting, Inc. (Service Contracting) as a third-party defendant. A justice of the Superior Court granted Service Contracting's motion for a directed verdict. The jury returned a verdict for Campanella. The trial justice granted the Gordons' motion for a new trial. Campanella appeals the grant of the new trial and the directed verdict.

On Monday, April 21, 1969, Service Contracting began painting the structural steel on a bridge that Campanella [112 R.I. 419] had built over Admiral Kalbfus Road. The contractual documents in evidence identified this bridge as Bridge 908. Admiral Kalbfus Road is a four-lane divided highway with two lanes being used for westbound traffic while the other two lanes serve the eastbound traffic. During this particular day, the painter's truck was parked under the overhead span in the westbound travel ² lane up against the northerly curb. Its employees were occupied in painting the northerly portion of the bridgework to a point 15 feet out from the abutment. Because there was concern that cars passing under the bridge might be splattered with paint, a barricade had been set up at a point some 200 yards east of the overpass so that the westbound traffic would be diverted into the eastbound passing lane where it would proceed westerly to an opening in the median strip just beyond the overpass and then reenter the westbound lanes. A Newport police officer had taken a position in front of the barricade and directed the westbound traffic through a gap in the median divider into the inner lane.

At 3:30 p.m., Mrs. Gordon was driving her automobile in the eastbound travel lane. ² Shortly before the underpass, Mrs. Gordon came upon a truck in front of her that was either stopped or moving slowly. Mrs. Gordon entered the eastbound passing lane and started to pass the truck. Within a matter of seconds, there was a head-on collision between the Gordon vehicle and one operated by Sherry M. Marin. ³ The Marin vehicle had been directed into the [112 R.I. 420] passing eastbound lane. The occupants of both automobiles were injured. The Gordons

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maintain that Campanella was negligent because of its failure to warn the eastbound travelers that they were going to encounter two-way traffic once they arrived in the area of the underpass.

We will first consider the grant of the new trial and then consider the grant of the directed verdict for the painter.

The modern gospel as to a trial justice's obligation in considering a motion for a new trial is to be found in Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836 (1964). A studied consideration of the case makes it quite clear that in this jurisdiction a trial justice, when acting on such a motion, might be classified as 'a thirteenth juror' because he brings into play his more experienced judgment by independently reviewing all of the material evidence in the light of his charge to the jury, passing upon the weight thereof, and assessing the credibility of the witnesses who have appeared before hem. In performing this all-important task the trial justice can reject some evidence or testimony, either because it was impeached or contradicted, or because other circumstances render it inherently improbable; he may also draw inferences which are reasonable in view of other testimony and the evidence which are in the record.

Once the trial justice has scrutinized the evidence in the fashion described here, he must make one of two choices. In those instances where his judgment tells him that the particular evidence and the reasonable inferences to be drawn therefrom are so nearly balanced that reasonable men could arrive at different results in the consideration of the case, he is obliged to deny the motion and affirm the verdict. However, if his judgment tells him that the jury's verdict is against the fair preponderance of the evidence and thereby fails either to do justice to the [112 R.I. 421] parties or to respond to the merits of the controversy, the motion must be granted and the verdict set aside.

The rule has been firmly fixed that when a trial justice follows the route laid out in Barbato, the appellant must persuade this court that the trial justice in deciding the motion was obviously mistaken in his judgment or overlooked or misconceived material evidence on a controlling issue in the case. Roberts v. Wills, 108 R.I. 586, 277 A.2d 754 (1971).

Campanella argues that a trial justice in considering a motion for a new trial is precluded from completely substituting his judgment for that of the jury and thereby encroaching on its function as the ultimate finder of fact. A ready response to this contention was made many years ago when it was said that every time a new trial is...