Pray v. Narragansett Imp. Co.

• Decision Date: 03 September 1981
• Docket Number: No. 80-280-A,80-280-A
• Citation: 434 A.2d 923
• Parties: Mary L. PRAY, Individually and as Administratrix of the Estate of Earl S. Pray v. NARRAGANSETT IMPROVEMENT CO. et al. ppeal.
• Court: Rhode Island Supreme Court

Page 923

434 A.2d 923

Mary L. PRAY, Individually and as Administratrix of the Estate of Earl S. Pray v. NARRAGANSETT IMPROVEMENT CO. et al.

No. 80-280-Appeal.

Supreme Court of Rhode Island.

Sept. 3, 1981.

Bradford Gorham, Providence, for plaintiff.

Asquith, Wiley & Ryan, Providence, Harry W. Asquith, Edward W. Moses, John M. Booth, Providence, for defendants.

OPINION

SHEA, Justice.

This action arose out of an automobile collision. The plaintiff administratrix, Mary L. Pray, who is the widow of Earl S. Pray, sued John Everson (Everson), the driver of the automobile which collided with the decedent; his employer, Narragansett Improvement Co. (Narragansett), and the plaintiff's and her decedent's insurer, Union Mutual Insurance Co.; for damages arising out of the wrongful death of her husband. Mrs. Pray resolved her claim against Union Mutual prior to trial and voluntarily dismissed that party with prejudice. At the close of all the evidence, the trial justice granted a directed verdict in favor of the defendant Narragansett. The plaintiff's claim against the defendant Everson was submitted to the jury, which returned a verdict for the plaintiff in the amount of $58,829. Judgment was entered accordingly, including interest at the rate provided by law. Everson's motion for a new trial was denied.

The plaintiff appeals from the directed verdict in favor of Narragansett. Everson filed cross-appeals on several grounds, each of which will be addressed separately. He objects to certain evidentiary rulings and instructions of the trial justice, to the computation of the damages and interest thereon, to the alleged unresponsiveness and excessiveness of the jury's verdict, and to the denial of his motion for a new trial.

The accident occurred at around 11 a.m. on April 3, 1974, in Foster, Rhode Island, at the point where Boswell Road meets Route 6. The plaintiff's decedent died at the scene. Consequently, defendant Everson was the sole eyewitness. Everson testified that Route 6 is a four-lane highway divided by a yellow center line with broken lines on either side separating lanes of travel. He was traveling easterly along Route 6 in the extreme right-hand lane at fifty miles per hour, the posted speed limit. He was driving an MG sports car and at the time was on his way to work in Providence from his home in Danielson, Connecticut.

Everson testified that in the easterly direction of travel, Route 6 contains a slight upgrade. It peaks and then slopes downward before reaching the intersection with Boswell Road. Because of this condition he could not see Boswell Road before he reached the peak of the grade. According to Everson, he first saw decedent's automobile when it was approximately 125 to 150 feet away as it was crossing Route 6 from a restaurant parking lot on the north side of the road to head south into Boswell Road. He estimated the speed of the Pray vehicle to be about three to five miles per hour. Everson said that he applied the brakes hard when he saw decedent's vehicle and tried to maintain control over his own car. He did not attempt to swerve either to the right or to the left to avoid colliding with decedent's automobile. His way to the right was blocked by a telephone pole, trees, and brush. He did not go left for fear of hitting a car approaching from the opposite direction, although Everson was not sure if any other traffic was oncoming because decedent's vehicle blocked his view. He stated that an evasive maneuver at fifty miles per hour would have cost him the control of his car, so he tried to stay in his lane, and to brace himself, "hop(ing) for the best." The testimony and photographs in evidence established that the front of Everson's car struck the right side of decedent's vehicle at the front, broadside.

On the date of the collision, Everson was employed as a mechanic for Narragansett, a road-construction enterprise owned by his father. Everson testified that he bought the MG he was driving several days prior to the accident and that in order to drive it before registering it, he had affixed to his car an "in transit" motor-vehicle registration plate belonging to Narragansett. Such plates are issued by the Registry of Motor Vehicles for use on heavy construction equipment when it travels to and from construction sites on public roads. ¹ Everson testified that he had never received instructions regarding the proper use of in transit plates. He had commuted to work on the Monday and Tuesday prior to the accident using the in transit plate on his car. For a short period before he purchased the car, Everson had used one of the company pick-up trucks to commute to and from work.

On the day before the accident, Everson's father noticed that the in transit plate was on his son's car. At the time, the car was parked on a public street outside the company's premises. According to Everson, his father told him to take the plate off the car. Everson responded that he would take if off when he registered the car in Connecticut.

Everson's father corroborated the fact that at his place of business there were no oral or written instructions on the use of in transit plates. He recalled seeing the plate on his son's car and telling Everson that it did not belong on his personal automobile. He also testified to telling his son to get the car properly registered and to take the plate off. He said that when he made this statement to his son, he did not mean that his son should first get the car registered and then remove the plate. He testified that his son "knew what I meant" and that he expected his son to remove the plate, to move the car into Narragansett's parking lot, and to drive a company pick-up truck home.

I

The plaintiff has appealed the granting of a directed verdict in favor of Narragansett. She advances several theories to support her claim that the trial justice committed error in ruling that there was no evidence to support a finding of Narragansett's responsibility. We will deal only with her statutory argument because our decision on that ground will dispose of her appeal.

In considering a motion for a directed verdict, this court must do what the trial justice does in the first instance. We examine the evidence and all inferences reasonably flowing therefrom in the light most favorable to the plaintiff. We do not pass on the credibility of witnesses or the weight of the evidence. We then determine whether or not there is evidence for the jury to consider which could warrant a finding in favor of the plaintiff. If we conclude that there is evidence supporting the plaintiff, or that there is evidence on which reasonable minds could differ, the jury is entitled to decide the facts of the case. DeCarvalho v. daSilva, R.I., 414 A.2d 806 (1980); Johnson v. Palange, R.I., 406 A.2d 360 (1979). In the case before us, we must determine whether or not the evidence viewed from plaintiff's perspective could allow reasonable minds to find that Everson's use of Narragansett's in transit plate at the time of the accident could bring about Narragansett's responsibility, under the law, for decedent's death. We hold that the trial justice decided correctly that the use of the in transit plate as it was used in this case could not create liability on the part of Narragansett.

The regulation and the use of in transit registration plates is governed by G.L. 1956 (1968 Reenactment) §§ 31-3-14(b) and 31-3-21(b). Section 31-3-14(b) states, "The registry shall issue plates designated as 'in transit' plates for use on special mobile equipment." Section 31-3-21(b) elaborates, "In transit plates may be used to operate or move special mobile equipment upon the highways solely for the purpose of moving such equipment to and from the location of any type of construction." The definition of "mobile equipment" is found in § 31-1-9:

"Every vehicle not designed or used primarily for the transportation of persons or property and only incidentally operated or moved over a highway, including but not limited to (enumerated construction equipment). The term does not include house trailers, dump trucks, truck mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached."

A reading of the statute establishes that there is no merit to plaintiff's argument that the issue of Narragansett's financial responsibility is a jury question. The use of the in transit plate on Everson's car did not cause the car to be registered in the name of Narragansett. Under the statute a number of in transit plates are issued to an individual or a company that serves as the registry's "agent" on the use and control of the plates. The plaintiff argues that affixing such a plate to any kind of vehicle registers that vehicle to the owner of the in transit plate. Once so registered, the vehicle and its drivers, plaintiff reasons, are governed under the provisions of §§ 31-33-6 and 31-33-7. Section 31-33-6 deems that a nonowner driver operates an automobile with the owner's consent as the owner's agent. The second section presumes that a vehicle involved in an accident when registered in the name of the owner was indeed being operated with the consent of the owner.

The plaintiff relies on Avedesian v. Butler Auto Sales, Inc., 93 R.I. 4, 170 A.2d 604 (1961). There an automobile involved in a collision bore dealer's registration plates. "Dealer plates" are issued in the same manner as in transit plates. Id. at 14, 170 A.2d at 609. Their effect, however, is quite different. On the day of the accident, the employee's wife had used the car to perform family errands and then left it parked in the driveway until the son took it. While driving it, he became involved in the accident from which the law suit arose. There was conflicting testimony regarding the employee's right to use the dealer plates when not on his employer's business and also regarding how...