Greene v. Rhode Island Co.

• Decision Date: 09 July 1915
• Docket Number: No. 4852.,4852.
• Citation: 94 A. 869
• Parties: GREENE v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

94 A. 869

GREENE

v. RHODE ISLAND CO.

No. 4852.

Supreme Court of Rhode Island.

July 9, 1915.

On Motion for Reargument July 15, 1915.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Laura I. Greene against the Rhode Island Company. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for the entry of judgment on the verdict.

J. Jerome Hahn and Raymond P. McCanna, both of Providence, for plaintiff. Clifford Whipple, Frederick W. O'Connell, and Alonzo R. Williams, all of Providence, for defendant.

BAKER, J. This is an action of trespass on the case for negligence brought to recover damages sustained by the plaintiff while boarding one of the defendant's electric cars on Cranston street, in the city of Providence, on January 21, 1913. The case was tried in October, 1914, when the jury returned a verdict in favor of the plaintiff and assessed the damages in the sum of $8,000. The defendant filed a motion for a new trial, which was denied. To this decision the defendant excepted, and the case is before this court on its bill of exceptions.

The bill contains four exceptions. The first exception was taken to the ruling of the trial judge in permitting the reopening of the case after both sides had rested and after the attorney for the defendant had completed his argument to the jury and the plaintiff's attorney had made a portion of his argument, and in then allowing one James B. Cunningham to testify in behalf of the plaintiff. The introduction of this testimony happened in this wise: Cunningham had been in court under summons by the defendant, but was not called as a witness. When the trial had proceeded to the point above stated, the court adjourned for the day. Cunningham then spoke to the attorneys for the plaintiff and informed them that he was a witness of the accident and knew all of the circumstances; that he had been under summons by the defendant and had not been called upon to testify. One of the plaintiff's attorneys made affidavit to these facts, expressing the belief that Cunningham was a material witness, and saying also that neither he nor his associate had any knowledge of the existence of the witness until they learned of the fact in the manner stated. When the court came in on the following morning, plaintiff moved to reopen the case. The court granted the motion, and at the same time informed the defendant's attorney that opportunity would be given him to meet this testimony, if he desired to do so, and that he might have the same time to argue to the jury as if the case had never been argued.

We think the granting of the motion was a proper exercise of the discretion of the trial judge. This discretion as to the reopening of a case has been extended to the admission of evidence "offered during and after argument and even after the cause has been submitted to the jury." Abbott's Trial Brief (2d Ed.) p. 123, and cases cited. In Case v. Dodge, 18 R. I. 661, 29 Atl. 785, the plaintiff was permitted to introduce in evidence the statutes of another state during the charge of the court to the jury. This exception is overruled.

The remaining so-called exceptions really constitute but one exception, as they are simply the three grounds on which the defendant relies to maintain his exception to the denial of its motion for a new trial. What is called the third exception is the claim that the verdict is contrary to law.

As on a hearing of a motion for a new trial before a justice of the superior court he is not permitted to pass upon his own errors of law, if any, the only question open to him for consideration on that ground is whether the jury accepted and followed the law as stated by the court at the trial. Musk v. Hall, 34 R. I. 120, 127, 82 Atl. 593.

The defendant does not in its brief refer to this third exception, and it is regarded as waived.

As to the ground that the verdict is against the evidence and the weight thereof, the defendant urges that the language of the trial justice upon this point, namely, "upon the whole it cannot be said that the jury was not warranted in finding for the plaintiff," is not such an approval of the verdict as should have weight with the court, citing Frey v. R. I. Co., 37 R. I. 96, 104, 91 Atl. 1, in support of its claim. The language quoted is not open to the criticism made in the Frey Case. In this case it must be held that the verdict is distinctly approved, although the use of the double negative may seem to qualify the strength of the approval. An examination of the transcript of the testimony shows that it was conflicting and somewhat confused and meager as to how...