McMahon v. R.I. Co.

• Decision Date: 06 March 1911
• Citation: 78 A. 1012,32 R.I. 237
• Parties: MCMAHON v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

78 A. 1012

32 R.I. 237

MCMAHON

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

March 6, 1911.

For other definitions, see Words and Phrases, vol. 3, pp. 2649, 2650.]

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Action by Bridget McMahon, administratrix, against the Rhode Island Company. A new trial was granted on defendant's motion, and plaintiff excepts. Exceptions overruled.

John W. Hogan, for plaintiff.

Joseph C. Sweeney and Clifford Whipple, for defendant.

PARKHURST, J. This is an action of the case for negligence resulting in the death of the plaintiff's intestate, who was injured in a collision with a train of the defendant's cars on Dyer street, in the city of Providence, March 10, 1910, opposite the scales and yard of the Eastern Coal Company, from which the plaintiff's intestate was driving out with a large coal wagon drawn by a pair of horses. The jury returned a verdict for the plaintiff for $5,000.

The defendant filed its motion for a new trial upon the usual grounds, viz.: (1) Verdict contrary to evidence; (2) verdict contrary to law; (3) damages excessive; (4) newly discovered evidence. Upon hearing of said motion the justice who presided at the trial granted the defendant's motion for a new trial on the ground that the deceased was guilty of contributory negligence. The trial court, upon the argument and consideration of the defendant's motion for a new trial, had before it a full transcript of all the evidence, and in its rescript makes a searching analysis of the testimony; and while it says, in discussing the manner of the defendant in running its cars, "I am not prepared to say that the defendant was not negligent in so doing," yet upon a very careful review of all the testimony the court reaches the following conclusion: "Apparently McMahon, while seeing the danger, thought by whipping up he could get by, and took the chance of so doing, and thus met the accident. In my judgment, the evidence as to the manner of the collision is fairly preponderant in showing that the deceased, in attempting to cross as he did in front of the train, was guilty of contributory negligence. And if the defendant's negligence consisted in operating the train practically without control, there was no opportunity on its part, under the doctrine of the last clear chance, to avoid the collision when McMahon whipped up and drove on. The motion for a new trial is therefore granted."

The plaintiff thereafter duly filed and prosecuted her bill of exceptions to this court, alleging four exceptions, of which at the argument in this court she only relies upon the first and fourth, which are as follows, viz.: "(1) To the ruling of the court excluding certain testimony, as appears in the transcript of testimony filed herewith at page 11 thereof." "(4) To the decision of said court granting the defendant's motion for a new trial," etc.

The first exception was noted to the ruling of the court sustaining an objection to a question which had been answered, as shown by the testimony on page 11, as follows: "Q. 86. As an experienced driver, when Mr. McMahon drove out there onto that track the distance he had to go, and looking down and seeing that train where you saw it just starting up, going slower than he was, was there room enough in space to get across if they didn't increase the speed? A. Yes, sir. (Objected to by Mr. Whipple. Objection sustained. Exception taken by Mr. Hogan.)" We do not see how this exception can avail the plaintiff. The question had already been answered before objection was taken, and the testimony was before the jury. There was no motion to strike it out, nor was the jury cautioned not to consider it in coming to their verdict. It is fair to assume that, as the jury found for the plaintiff, they did consider this testimony with the other evidence in the case; nor can it be assumed that the trial court, in its consideration of all the evidence before it in the motion for new trial, did not, upon mature deliberation, consider this evidence also as admissible, and weigh it with all the other evidence in coming to its conclusion as to the contributory negligence of the plaintiff's intestate. Upon the record as it stands, we do not see that the plaintiff was prejudiced by this ruling of the court, and this exception is therefore overruled.

The fourth exception relates to the action of the court in setting aside the verdict and granting the defendant's motion for a new trial solely upon the ground of the contributory negligence of the plaintiff's intestate. The plaintiff's counsel argues with much emphasis that, as the jury found for the plaintiff, and as the question of the plaintiff's contributory negligence upon all the evidence was a question solely for the jury, and was properly left to them, the court below was in error in setting aside the verdict, on the ground that "the evidence as to the manner of the collision is fairly preponderant in showing that the deceased, in attempting to cross as he did in front of the train, was guilty of contributory negligence." Counsel takes the position that the court below, in finding only that the evidence is "fairly preponderant," states himself outside the rule long established by this court, as well as by all other courts of last resort, that to justify the grant of a new trial, on the ground that the verdict is against the evidence and the weight thereof, it should appear that the evidence very strongly preponderates against the verdict, and cites Boss v. Prov. & Worcester R. R. Co., 15 R. I. 155, 156, 1 Atl. 9; Johnson v. Blanchard, 5 R. I. 24, 25; Patton v. Hughesdale, 11 R. I. 188; Sweet v. Wood, 18 R. I. 387, 389, 28 Atl. 335; Watson v. Tripp, 11 R. I. 98, 103, 33 Am. Rep. 420; Lebeau v. Dyerville Mfg. Co., 26 R. I. 36, 57 Atl. 1092; Hehir v. Rhode Island Co., 26 R. I. 31, 58 Atl. 246. We have no doubt whatever that the rule, recognized and established in these cases, is the true rule, when applied, as it is therein applied, to the powers of a court of last resort, where only the written transcript of the evidence is before the court. But the plaintiff's counsel fails to distinguish between the proper exercise of the powers of a court of last resort in granting new trials, and the proper function of the trial court in granting new trials, when the trial judge has had the advantage of seeing and hearing all the witnesses before the jury.

The cases above cited were all decided before the change in our judicial system, and before the creation of the present superior court. At that time motions or petitions for new trial on the ground that the verdict was against the evidence came at once to the Supreme Court, or later to the Appellate Division of the Supreme Court, upon the written transcript of the evidence, and not before the trial court, where the judge as well as the...