Hamrick v. Yellow Cab Co. of Providence

• Decision Date: 17 May 1973
• Docket Number: No. 1828-A,1828-A
• Parties: Lawrence HAMRICK, Administrator of the Estate of Aleen Hamrick v. YELLOW CAB COMPANY OF PROVIDENCE. ppeal.
• Court: Rhode Island Supreme Court

Page 666

304 A.2d 666

111 R.I. 515

Lawrence HAMRICK, Administrator of the Estate of Aleen Hamrick v. YELLOW CAB COMPANY OF PROVIDENCE.

No. 1828-Appeal.

Supreme Court of Rhode Island.

May 17, 1973.

Alton W. Wiley, Providence, for plaintiff

Schreiber, Clingham & Gordon, Stephen A. Gordon, Providence, for defendant.

OPINION

DORIS, Justice.

This is an action of trespass on the case for negligence brought to recover damages for injuries alleged to have been sustained when the plaintiff's decedent, a pedestrian, was struck by the vehicle of the defendant which was being operated by the defendant's agent and servant on August 31, 1962. Prior to trial, an order was entered on March 30, 1972, substituting Lawrence Hamrick, administrator of the estate of Aleen Hamrick as party-plaintiff. The case was tried before a justice of the Superior Court sitting with a jury and resulted in a verdict for the plaintiff in the amount of $1500. The trial justice denied the defendant's motion for a new trial, he granted the plaintiff's motion for an additur by ordering the defendant to agree to an additur of $1,000 within ten days or a new trial would be ordered on the question of damages only. The defendant did not agree to the additur. Judgment was entered on the verdict. The case is before us on the defendant's appeal from the judgment.

The appeal is based on defendant's objections to certain evidentiary rulings by the trial justice; to his refusal to charge the jury as requested; to the decision denying defendant's motion for a directed verdict; to the decision denying defendant's motion for a new trial and to the decision granting an additur of $1,000 or in the alternative a new trial on the question of damages only.

Lawrence Hamrick, the son and administrator of the deceased plaintiff testified that he visited her in the Rhode Island Hospital and that she was on crutches for a period of three weeks or more after her discharge from the hospital.

Arthur Carter, Jr. testified that he was accompanying Aleen Hamrick, plaintiff's decedent, that they were walking on Prairie Avenue in the city of Providence, that at the intersection of Blackstone Street and Prairie Avenue he and Aleen started to cross Prairie Avenue after looking both ways for oncoming traffic. He testified that he slowed down to allow a truck which was headed towards Providence to pass. He saw a car with blinding lights coming at a high rate of speed in a southerly direction. He grabbed Aleen by the arm and tried to pull her back to the curbing. He stated that they were one-third of the way across the street when the accident occurred. He also stated he did not see the lights until a few seconds before being hit. He further testified that he did not remember talking to the police officers or to Earl F. Adams, a representative of defendant.

Sergeant Michael J. DiMauro of the Providence Police Department testified as to the location of the accident. He stated that the accident did not occur at a crosswalk. He also stated that he interviewed Arthur Carter, Jr. at the Rhode Island Hospital and took his statement from him.

Patrolman James W. Breen of the Providence police testified that he viewed the scene of the accident and that the accident did not occur at a crosswalk or intersection. He stated that he accompanied Sergeant DiMauro to the Rhode Island Hospital where they interviewed Arthur Carter, Jr.

Earl Adams testified that he was employed by defendant and he investigated the accident. He made a diagram of the location of the accident. He further testified that he interviewed the driver of defendant's vehicle, Ralph Onley, Sr. He testified further that Arthur Carter, Jr. told him that he and Aleen were walking home and when they started to cross the street in front of 191 Prairie Avenue, he was suddenly struck by a motor vehicle.

Arthur Carter, Jr., called as a rebuttal witness, testified that the did not remember talking to either of the police officers. He also testified he did not believe he talked to Earl Adams.

Theodore K. Gibson, M.D. started in his report, plaintiff's exhibit No. 3, that Aleen Hamrick suffered a fractured pelvis, that she was hospitalized from September 10, 1962 to October 6, 1962; that she was released from the hospital on crutches; that she was allowed to discard the crutches on November 23, 1962; that when last seen by him on January 25, 1963, she was walking well without support but she complained that her left groin bothered her. Examination on that date by him revealed a normal range of motion and strength of the right hip, but showed a reduction in range of motion with pain on certain motions of the left hip. Doctor Gibson expressed concern regarding the pain and decreased range of motion in the left hip.

Ralph F. Pike, M.D. stated in his report, plaintiff's exhibit No. 4, that when he examined Aleen Hamrick on January 17, 1963, she was still experiencing a great deal of pain and in his opinion she would experience a definite permanent residual physical impairment.

The medical and hospital bills set forth in plaintiff's exhibits 1, 2, 3 and 4, total $1207.15.

I

The defendant, relying on G.L.1956 (1969 Reenactment) § 9-19-11, contends that it was reversible error for the trial justice to refuse to admit into evidence statements made by Ralph Onley, Sr., driver of defendant's vehicle, at the time of the accident. The driver had deceased prior to the commencement of this action. The defendant attempted to introduce into evidence a statement made by the deceased driver to the police at the police station on the night of the accident and also a statement made by him to Earl Adams, an employee of the defendant, on the day following the accident.

Section 9-19-11 states: 'A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.' This statute has been construed liberally to carry out the intent of the Legislature to admit the statements of deceased persons despite their hearsay character. In order to admit statements under this statute the trial justice must ascertain that the statements sought to be admitted were made prior to the institution of the action, in good faith, and within the knowledge of the declarant. If the trial justice finds any of these elements to be absent he should refuse to allow the statements to be admitted into evidence. Here, it is conceded that the statements were made prior to the institution of the action and within the knowledge of the declarant.

The remaining point as to whether they were made in good faith was considered by the trial justice. He excluded the statements of the deceased driver on the ground that they were not made in good faith. A reading of the transcript indicates that one of the statements was made to the police at the police station during an investigation following the accident. The transcript indicates that the trial justice concluded that because of fear of prosecution the statement of the driver to the police was not made in good faith. As to the statement of the driver to the employee of defendant, the trial justice concluded that because of the fear that he might incriminate himself with his employer the statement was not made in good faith. In such circumstances, we cannot say that the trial justice, finding the absence of good faith as he did, abused the discretion vested in him by the statute when he refused to admit into evidence the statements by the deceased driver. We, therefore, hold that the trial justice committed no error in excluding the statements of the deceased driver.

II

We next consider defendant's contention that the refusal of the trial justice to grant the following requests to charge the jury was prejudicial error:

'9. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. If you find that on the basis of the testimony offered, the Plaintiff's Decedent did actually commit this act, you must find for the Defendant. GLRI 1956, § 31-18-3, As Amended.

'10. If you find that the Plaintiff's Decedent looked but did not see what she should have seen then you must find for the Defendant, for under the Laws of the State of Rhode Island, there is the presumption that a Plaintiff keepint a proper lookout would have seen the danger and avoided the resulting accident. Keenan v. Providence Journal Company, 52 R.I. (54, 157 A. 302).'

In reference to request No. 9, there is no evidence in the record that plaintiff suddenly left the curb and walked or ran into the path of a vehicle. In fact, the evidence is directly opposite, the testimony being that she stopped at the curb and looked left and right. Consequently, we hold that the trial justice correctly denied defendant's request No. 9.

It is well settled in this state that the charge given to the jury must be applicable to the facts that have been adduced in evidence and that a request for instructions is properly denied when there is no basis for such instructions in the evidence. Cinq-Mars v. Standard Cab. Co., 103 R.I. 103, 235 A.2d 81 (1967).

As to request No. 10, we conclude that the substance of this request was fairly covered by the general charge and therefore the trial justice's refusal to grant the request was not reversible error. Where a request to charge a jury was fairly covered by the general charge, refusal to grant the request was not reversible error. Handy v. Geary, 105 R.I. 419, 252 A.2d 435 (1969).

III

We now come to consideration of defendant's motion for a new trial. The trial justice reviewed the evidence which he considered pertinent to the issues raised by defendant's motion. He...