Palumbo v. Garrott

• Decision Date: 19 February 1963
• Docket Number: Nos. 10420-10422,10423,s. 10420-10422
• Citation: 188 A.2d 371,95 R.I. 496
• Parties: Michael PALUMBO v. Richard J. GARROTT. Angelina PALUMBO, p.a. v. Richard J. GARROTT. Michael PALUMBO v. James H. GARROTT. Angelina PALUMBO, p.a. v. James H. GARROTT. Ex.
• Court: Rhode Island Supreme Court

Page 371

188 A.2d 371

95 R.I. 496

Michael PALUMBO v. Richard J. GARROTT.

Angelina PALUMBO, p.a. v. Richard J. GARROTT.

Michael PALUMBO v. James H. GARROTT.

Angelina PALUMBO, p.a. v. James H. GARROTT.

Ex. Nos. 10420-10422, 10423.

Supreme Court of Rhode Island.

Feb. 19, 1963.

Kirshenbaum & Kirshenbaum, William Young Chaika, Providence, for plaintiffs.

Carroll & Dwyer, Robert L. Kiernan, Providence, for defendants.

ROBERTS, Justice.

These are four actions of trespass on the case for negligence that were brought to recover damages for injuries alleged to have been sustained in a motor vehicle collision. The cases were tried together to a jury in the superior court, and thereafter a verdict for the defendant was returned in each case. In each case the plaintiff moved for a new trial, and each motion was denied. The plaintiff now prosecutes a bill of exceptions to this court in each case, including therein exception to certain evidentiary rulings of the trial justice, to the refusal of the trial justice to charge as requested, and to the denial of the motion for a new trial.

The plaintiff Angelina Palumbo, being a minor, brought suit through her father and next friend, Michael Palumbo. Inasmuch as recovery in his cases depends on the defendants' liability to the plaintiff Angelina, we shall hereinafter treat her as the sole plaintiff. Our decision, however, will apply to the plaintiff in each case.

It appears from the evidence that on Sunday, August 30, 1959, Richard J. Garrott, hereinafter referred to as defendant, was driving an automobile owned by his father, defendant James H. Garrott, in a southerly direction along Newport avenue in the city of Pawtucket. It further appears that plaintiff was a passenger in the automobile and was riding in the front seat thereof to the right of defendant. According to the evidence, defendant was driving in the inside lane of Newport avenue, a four-lane highway, and was following an automobile that was about three car lengths ahead of him in the line of traffic. The defendant testified that after passing through the intersection of Beverage Hill avenue the automobile immediately ahead of him in the line of traffic suddenly stopped; that he thereupon attempted to apply the brakes of his car; that his foot slipped from the brake pedal to the gas pedal; and that the automobile jumped forward and collided with the rear of the car that had stopped immediately ahead.

The plaintiff contends that the trial justice erred in excluding testimony that would have had probative force on the question of defendant's negligence by sustaining an objection to an inquiry put by plaintiff during cross-examination of defendant. He had previously testified that his car was about forty feet behind the car with which he collided at the time that car suddenly stopped. The precise question under consideration was: 'I am talking about this time, this time shortly before the time of this trailing forty feet behind this particular car, this particular Sunday, you could have brought your car to a stop in forty feet?' The plaintiff argues, in substance, that the effect of sustaining this objection was to preclude proof by plaintiff of certain specific acts of negligence on the part of defendant.

The short answer to this contention is that plaintiff was seeking to elicit from defendant an opinion as to whether, in the circumstances to which he had just testified, he could have stopped his car before it collided with the car ahead of it. This is a matter so clearly within the comprehension of the jury as to preclude the admission of opinion evidence thereon. This court has long adhered to the evidentiary proposition that when circumstances are such as can be fully and adequately described to a jury and are of such character that their bearing upon an issue can be estimated and understood by all men without special knowledge or training, the opinion of witnesses, expert or otherwise, is not admissible thereon. Glennon v. Great Atlantic & Pacific Tea Co., 87 R.I. 454, 457, 143 A.2d 282; Fontaine v. Follett, 51 R.I. 413, 416, 155 A. 363. It is our opinion that no error inhered in the exclusion of the testimony sought to be elicited.

It is also contended by plaintiff that prejudicial error inhered in the refusal of the trial justice to charge the jury in accordance with her specific requests for instructions. The plaintiff had submitted five requests for specific instructions, all of which were concerned with the conduct of defendant which, if established, would constitute evidence of negligence. The plaintiff contends that the trial justice erred in that he refused to apply specific rules of the law of negligence to particular fact situations she contends had been established by the evidence. The charge as given may in some measure have been general and wanting in precision. It does, however, in our opinion, fairly state the law applicable to the instant cases and informs the jury of the relationship thereof to the facts in evidence. In such circumstance we will not hold that the charge as given was prejudicial merely because it would have been clarified had the instructions requested been given. Harley v. Big Ben Market Co., 80 R.I. 502, 98 A.2d 870.

When the charge as given is examined, it is clear that the trial justice instructed the jury as to the law of negligence and its application to the law of motor vehicles. This he did, not only in general terms but specifically with respect to situations in which motor vehicle operators are confronted with sudden emergencies and as to the rule of the road applicable to situations where one vehicle is following closely upon another. In our opinion the charge as thus given covered the substance of the plaintiff's requests. It is our further opinion that had the trial justice charged the jury as specifically requested, he would have been required to discuss the evidence in full to avoid misleading and confusing them by such instructions. It is well settled that the question of discussing evidence in a charge is one within the discretion of a trial justice, and in the instant cases we perceive no abuse thereof. Rossilli v....