Jackson v. Choquette & Co., Inc., 9142

• Decision Date: 20 April 1951
• Docket Number: No. 9142,9142
• Citation: 80 A.2d 172,78 R.I. 164
• Parties: JACKSON v. CHOQUETTE & CO., Inc. Ex.
• Court: Rhode Island Supreme Court

Page 172

80 A.2d 172

78 R.I. 164

JACKSON v. CHOQUETTE & CO., Inc.

Ex. No. 9142.

Supreme Court of Rhode Island.

April 20, 1951.

Joseph H. Coen, Providence, for plaintiff.

Francis V. Reynolds, Joseph V. Cavanagh, Providence, for defendant.

CAPOTOSTO, Justice.

This is an action of trespass on the case for negligence arising from a collision between plaintiff's automobile and defendant's truck at the intersection of Gordon and Potters avenues in the city of Providence. The case was tried without a jury before a justice of the superior court who decided for the plaintiff and awarded damages in the sum of $750. Thereafter each party brought the case to this court on a separate bill of exceptions. The respective parties press only the following exceptions, all others being expressly waived. Under its exceptions defendant contends that the trial justice erred in finding, first, that the accident was caused solely by negligence on the part of defendant's driver; and secondly, that the recurrence of plaintiff's hernia was attributable to the accident. The only exception pressed by the plaintiff of that the damages are inadequate for reasons which will later appear.

A brief summary of the evidence is sufficient for our purposes. On January 3, 1949 shortly before noon plaintiff was operating a 1936 Chrysler sedan southerly on Gordon avenue while Francis J. Flynn, defendant's employee, was driving a three-quarter ton truck easterly on Potters avenue. The two vehicles approached the intersection of those highways, each 24 feet wide, at an estimated speed of about 20 to 25 miles an hour. There were no police stop signs to control traffic on either highway at that intersection. With the exception of some snow on the ground, weather and traffic conditions were good.

The operators of the two vehicles were the only persons to testify as to how the accident happened. Plaintiff's testimony in effect was that he came to a complete stop at the northwesterly corner of Gordon and Potters avenues; that seeing no vehicles on Potters avenue, he started to cross and did cross about one half of the intersection when he saw defendant's truck, which was then some 75 feet away, coming towards him from his right; that under such conditions he continued on his way until his automobile was partially in Gordon avenue to the south of the intersection when the truck 'instead of going straight * * * cuts into Gordon Avenue on me, and that is the time that we collided.'

On the other hand Flynn, the driver of defendant's truck, testified that when he was about 75 feet from the intersection he first saw plaintiff's automobile in motion 'right at the intersection,' at which time he blew the horn and reduced his speed to 10 or 15 miles an hour; that as plaintiff proceeded across the intersection, without stopping, he jammed the brakes on when he was 10 or 15 feet from him; and that, because of snow on the ground, he skidded 4 or 5 feet to his right with the result that the front of the bumper on his truck struck the right front side of plaintiff's automobile when the latter vehicle was three quarters of the way across the intersection.

We have often said that there is no rule of general application for collisions between motor vehicles at street intersections. Whether or not there is liability depends upon the facts of each case viewed in the light of accepted principles of law. Andrews v. Penna Charcoal Co., 55 R.I. 215, 179 A. 696; Dembicer v. Pawtucket Cabinet & Builders Finish Co., 58 R.I. 451, 193 A. 622. Furthermore, the fact that a party may have the right of was at an intersection does not excuse him from the charge of negligence if he exercised that right in the face of an apparent danger. Houghton v. Baillargeon, 53 R.I. 475, 167 A. 115.

A reading of the transcript in this case clearly shows that the evidence on the issue of liability was highly conflicting and irreconcilable. Since there was no evidence corroborating the testimony of the plaintiff or of defendant's driver, their respective credibility became a question of controlling force, the determination of which question could reasonably lead to different and opposite conclusions. In contending that neither defendant's negligence nor plaintiff's due care had been established by a fair preponderance of the evidence, defendant assumes that plaintiff's version of the accident was so improbable as to be unworthy of credence. The trial justice, who had the advantage of observing the two drivers while testifying, believed otherwise.

A careful examination of his decision, in which he fairly reviewed and commented on the conflicting testimony of the two drivers, shows that he did not overlook or misconstrue any material evidence on the issue of liability; and further that the inferences which he drew from such evidence were neither unjustified nor unreasonable. Under our well-established rule governing the weight that will be given to such a decision in this court we cannot say that in the circumstances of record the trial justice was clearly wrong in deciding for the plaintiff on the issue of liability. Defendant's first exception is therefore overruled.

Under its only other exception defendant contends that the award of damages for a hernia is not warranted by the evidence. It points out, among other things, that the plaintiff had been operated on for a hernia in 1942; that thereafter he had engaged in heavy work; that at the time of the accident he did not claim either to defendant's driver or to a police officer who came upon the scene shortly after the occurrence that he sustained such injury; that he said nothing about that condition to his doctor until some few days later; and that the trial justice misconceived the evidence when he stated in his decision that there was 'absolute testimony' that the hernia resulted from the accident.

The weakness of such contention is that it excludes almost to the point of complete elimination the testimony of Dr. Francis V. Garside, the only medical witness in the case. Called as a witness by the plaintiff, Dr. Garside testified that he had successfully operated on the plaintiff for a left inguinal...