Lynch v. Saccoccia, 9950

• Decision Date: 29 October 1959
• Docket Number: No. 9950,9950
• Citation: 90 R.I. 82,155 A.2d 242
• Parties: William E. LYNCH v. Paul SACCOCCIA. Ex.
• Court: Rhode Island Supreme Court

Page 242

155 A.2d 242

90 R.I. 82

William E. LYNCH v. Paul SACCOCCIA.

Ex. No. 9950.

Supreme Court of Rhode Island.

Oct. 29, 1959.

Robert J. McOsker, Providence, for plaintiff.

Frank W. Golemba, City Sol. of Cranston, James DiPrete, Jr., Asst. City Sol., Providence, for defendant.

ROBERTS, Justice.

This action of trespass on the case for negligence arose out of a collision between two automobiles on May 10, 1956 in the city of Cranston. 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 $500. The case is before this court only on the defendant's exceptions to the denial of his motions for a directed verdict and for a new trial, his other exception to an evidentiary ruling having been waived.

The collision occurred at the intersection of Park avenue, Rolfe street, and Pontiac avenue. The plaintiff was driving his automobile in a westerly direction on Park avenue and defendant, a police officer, in response to a call reporting a prowler, was operating a patrol car in an easterly direction on the same street. The plaintiff attempted to turn left into Pontiac avenue and his car was struck by that of defendant the left front of each automobile being the point of contact.

We will first consider defendant's exception to the denial of his motion for a directed verdict. In support of such motion defendant relies upon two arguments. In his brief he contends that plaintiff is guilty of contributory negligence was a matter of law as evidenced from his own testimony. In his oral arguments, as we understand it, he contends further that plaintiff's testimony was in conflict with the established physical facts and therefore no inference favorable to plaintiff could be drawn therefrom.

It is well established in this jurisdiction that where the testimony of a party is in conflict with established physical facts it must yield to such facts. Whalen v. Dunbar, 44 R.I. 136, 115 A. 718; Keenan v. Providence Journal Co., 52 R.I. 54, 157 A. 302. But this rule is one of limited application. It is invoked only in those cases where the physical facts upon which a party relies are definitely established in the record. It is without effect where such facts are not clearly established and where the contention that they have been clearly established is based upon an assumption not supported by the evidence. McAllister v. Chase, 65 R.I. 122, 13 A.2d 690.

The plaintiff testified that he entered the intersection at a speed of ten to fifteen miles per hour; that he was on the right side of the center line of the road; that the light was green in his favor; that his directional signal was indicating a left turn; and that he saw another car, not defendant's, approaching on Park avenue some three or four car lengths away from him and not yet at the intersection. He further testified that he did not see defendant's automobile when beginning the left turn; that when he first saw it the police car was passing the other automobile; that it was straddling the center line and approaching at...