Handy v. Geary, s. 391-A
| Citation | 252 A.2d 435,105 R.I. 419 |
| Decision Date | 23 April 1969 |
| Docket Number | Nos. 391-A,s. 391-A |
| Parties | Spencer HENDY v. Cyril GEARY. Spencer HENDY v. Dennis GEARY. Peter UCCI, p.a. v. Dennis GEARY. Silvio UCCI v. Dennis GEARY. ppeal, 392-Appeal, 393-Appeal, 394-Appeal. |
| Court | United States State Supreme Court of Rhode Island |
These four actions of trespass on the case for negligence 1 involve the alleged negligent operation of an automobile owned by the defendant Cyril Geary and operated by his son Dennis. The plaintiffs Spencer Handy and Peter Ucci were passengers in the Geary automobile. Spencer Handy brought an action for personal injuries against both defendants. Peter Ucci and his father Silvio Ucci sued Dennis Geary alone. Peter, who sued by his father and next friend, sought damages for personal injuries. His father sued for consequential damages sustained by him as the result of the accident.
The four cases were consolidated for trial and were tried before a justice of the superior court sitting with a jury and resulted in verdicts of $669.10 for Spencer Handy against both defendants, and $850 for Peter Ucci and $4,797.37 for Silvio Ucci against defendant Dennis Geary.
The trial justice denied defendants' motions for new trials in all four cases. He also denied Spencer Handy's motion for an additur and for a new trial on damages only, but he granted Peter Ucci's motion for an additur by ordering defendant Dennis Geary to agree to an additur of $10,000 within five days or a new trial would be ordered on the question of damages only. The defendant did not agree to the additur.
In each case a judgment 2 on the verdict was entered. The cases are before us on defendants' appeals from the judgments. The defendants base their appeals on their objections to certain evidentiary rulings by the trial justice, to his refusal to charge as requested, to objections to his charge, to his decisions denying their motions for new trials, and, in the case of Peter Ucci, to his decision granting an additur of $10,000 or a new trial on the question of damages only.
The issues raised by these appeals require a rather detailed discussion of the evidence. These actions result from an accident which occurred when an automobile, driven by Dennis Geary, and in which plaintiffs Spencer Handy and Peter Ucci were passengers, left the road and struck a boulder on the side of the road. The collision happened on Arnold Road, a macadam-surfaced highway approximately 28 feet in width at the point of impact. About midnight on August 17, 1962, defendant Dennis parked his father's automobile in a dimlylit parking lot behind a hot dog stand located on Arnold Road at a place known as Twin Lakes in Coventry. The stand was closed at that hour, but Dennis stayed there for more than on half hour with five or six other young people. The accident happened about three or four minutes after Dennis left the stand in his car.
Peter Ucci testified that he and some friends had been at a dance; that after the dance they went to the home of one of his friends, one Ralph Mascola; that the Mascola house was in the vicinity of the hot dog stand; that at about 11:30 or 12 p.m. on the night in question, he and his friends went out on a boat owned by Ralph Mascola's father; and that after a while he and one of his friends jumped off the boat and swam to a beach near the hot dog stand. He further testified that later his friends in the Mascola boat came to the hot dog stand in three automobiles and delivered his clothes and those of his friend; that he changed into dry clothes but did not leave the area in any of his friends' automobiles, but instead left in Dennis Geary's automobile; that he was only getting a ride back to the Mascola house; that he never knew Dennis or Spencer Handy before this night. Peter also testified that Dennis started to drive a little fast after they had gone through the builtup section; that he told Dennis to slow down; and that the speed of the car before it left the road was 70-75 miles an hour. Peter was sitting in the front seat. The car left the road and hit a boulder at the edge of the road. Peter testified that he braced himself and saw everything, even when the car hit the tree and flung Dennis out of the driver's door.
Peter sustained a fracture of the left frmur, a fracture of the first through the fourth metatarsal bones of the left foot and a fracture of the eighth and ninth ribs on the right side, with multiple contusions and abrasions. He was in the hospital from August 17 to September 6, 1962, and again for two days on September 23 to September 24, 1963, to have a pin removed. His medical bills totaled $900 plus hospital bills of $883, and his loss of wages was forty weeks at $77 and one week at $92.
Dennis Geary's testimony is substantially as follows. He did not know Peter at all prior to the night of the accident. He said he asked the 'fellows' on the parking lot behind the stand to go for a ride with him, that they jumped in his car, and he then drove away with no specific destination in mind. He could not recall whether he had any talk with Peter about where he was going or where he, Dennis, was going to take him. He denied that anyone told him anything about the way he was driving or that Peter told him to slow down. He said he did not remember seeing Peter and his friend in the area until Peter got in the car. In describing how the accident occurred he said he was coming around a curve on Arnold Road, that the headlights of an approaching car blinded him, that he applied his brakes and pulled to the right, that he lost control of his car and hit the rock, and then hit a tree, pushing in the front end and knocking out the windshield, and that after that he did not remember anything until he woke up in the hospital.
Dennis described his injuries and said that he sustained a severe concussion from striking his forehead and that this affected his memory. He said that he remembered little about the accident after hitting the boulder, when he was knocked out. He had no recollection of his speed when he started out from the parking lot, during the short ride, or at the time of the accident. The evidence as to the speed of the Geary car came entirely from plaintiffs and their witnesses.
Spencer Handy testified that Dennis was driving at an estimated speed of at least 60 to 70 miles an hour when the car left the road; that he had been going at that speed for sometime after he left the parking lot; that he not object to the way Dennis was driving; and that he did not hear anybody else in the car object to Dennis driving that fast. A statement signed by Spencer ten days after the accident is in evidence as one of defendants' exhibits. It contains statements by him that he had fallen asleep when he got into the back seat of the car; that before he fell asleep, Dennis was going about 30 miles an hour and that he was driving in a careful manner. The record also contains evidence describing Spencer's injuries.
The plaintiffs presented the testimony of one Richard T. Lesniak, a resident of Arnold Road, who saw the accident. He gave the following testimony. At he was driving his car in a northerly direction on Arnold Road at a speed of 30 to 40 miles per hour he saw He had pulled over to the side of the road because he thought Dennis' car was going to hit him, and estimated he was about 25 to 35 years away from the car when it left the road. He said Dennis' car to the best of his knowledge, was propped up on a boulder and that once it hit the boulder it never moved. He did not remember the car hitting a tree. He further testified that because of the way the curve runs on the road at that point, his car's headlights were shining towards the bank and away from Dennis. Although he saw the headlights of Dennis's car coming in the dark toward him only for a matter of a second or two, he estimated the speed of that car at 70 miles per hour when it left the road.
The police testimony is that Dennis' car first struck a boulder and then struck a tree some 60 feet away. The record also contains medical testimony and various exhibits which, though important, require no discussion at this time.
The defendants have briefed and argued their objections under four main points. We shall treat them in like manner, though not in the same order.
We address ourselves initially to their contention that the trial justice committed prejudicial error in refusing to admit certain material evidence.
Their first argument challenges the trial justice's ruling sustaining plaintiffs' objection to the introduction in evidence of a certain sketch, which had been marked defendants' 'B' for identification. The sketch, which was made by the Coventry police, contains a diagram of the scene of the accident and certain other measurements, but it was not the original sketch made at the scene. It was not drawn to scale and was not as accurate as the original. Substantially all of the measurements and other markings on the sketch are covered in the oral testimony. In these circumstances we cannot say that the exclusion of the sketch was prejudicial error.
The defendants' next contention, as they state it, relates to the 'Exclusion of questions to intend to prove plaintiffs were going on a joy ride.' The defendants' counsel refers to the following portion of his cross-examination of Peter Ucci at page 151 of the transcript.
'489 Q You went to work Friday morning, didn't you?
A No.
'490 Q Didn't you work that day?
'A How could I, I was in the hospital.
'491 Q Normal course, if no accident happened, wouldn't you have gone to work the next day?
A Yes.
'492 Q How were you going to get to work over in...
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