Russian v. Lipet

• Decision Date: 20 February 1968
• Docket Number: Nos. 203-A,s. 203-A
• Citation: 103 R.I. 461,238 A.2d 369
• Parties: Rose Lynn RUSSIAN, p.a. v. Louis LIPET. Angelina RUSSIAN v. Louis LIPET. ppeal, 204-Appeal.
• Court: Rhode Island Supreme Court

Page 369

238 A.2d 369

103 R.I. 461

Rose Lynn RUSSIAN, p.a. v. Louis LIPET.

Angelina RUSSIAN v. Louis LIPET.

Nos. 203-Appeal, 204-Appeal.

Supreme Court of Rhode Island.

Feb. 20, 1968.

Reargument Denied March 12, 1968.

[103 R.I. 467] John F. McBurney, Pawtucket, for plaintiffs.

Keenan, Rice & Dolan, John F. Dolan, Providence, for defendant.

OPINION

JOSLIN, Justice.

These two suits, one by a minor through her mother and next friend and the other by the mother for consequential damages, although commenced as actions of trespass on the case for negligence, were tried together to a jury in the superior court as civil actions under that court's new rules of civil procedure. In each case the verdict was for the defendant. Thereafter, following denial of their respective motions for new trials and entry of judgment in each case for the defendant, plaintiffs appealed. While we discuss only the minor's case, our decision applies with equal force to both.

The suit was brought to recover damages for injuries sustained by plaintiff in an automobile accident which occurred on June 30, 1962 at about 10:45 in the evening on Newport avenue in Pawtucket. It is a well-travelled highway, has two northerly and two southerly travelled lanes, and a posted speed limit of 35 miles per hour. The plaintiff, then 9 years of age, sustained her injuries when, while crossing from the easterly to the westerly sidewalk of the highway, she was struck after she had reached the southerly lanes by an automobile which defendant was driving in a southerly direction.

The case was tried for several days and a number of witnesses testified. The evidence was in sharp conflict on the speed at which defendant was proceeding, whether he was keeping a proper lookout for pedestrians, if he was faced with a sudden emergency, whether plaintiff stepped from the sidewalk or darted out, and whether she ran or walked across the highway. The jury by returning a defendant's verdict obviously resolved those conflicts in his favor. Thereafter, in passing on plaintiff's motion for a new trial, the trial justice in the exercise of his independent judgment considered all of the material evidence in the case in the light of his charge to the jury. He accepted defendant's testimony and the testimony of some of his witnesses as impressive, and he rejected, as lacking in credibility, much of the evidence which was favorable to plaintiff's case. Then, looking at the evidence thus screened, he approved the verdict. Rather than doubting its correctness or having any concern that it might fail to respond truly to the merits of the controversy and to administer substantial justice, he was sufficiently convinced of the verdict's correctness that he said in his decision that, had he been sitting on the case without the benefit of the jury, he would have reached the identical conclusion.

The plaintiff does not, nor could she successfully, question the manner in which the trial justice performed his duty. Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836. She argues instead that the trial justice misconceived the evidence when he found that the testimony of defendant as well as that of one of his key witnesses was credible, notwithstanding that it had been impeached both by the inconsistencies inherent therein and by prior contradictory statements made out of court. A decision so predicated, she contends, is clearly wrong and should not be accorded the great weight to which it would otherwise be entitled. The weakness in her argument is, of course, that neither a witness's prior contradictory statements nor the inconsistencies in his testimony inhibit a fact finder's right to accept the witness as credible, and to pick and choose from his testimony what portions he deems worthy of belief. Because credibility is a factual issue, the impeaching character of a witness's prior contradictory or inconsistent statements, although an important consideration in passing on the weight of his testimony, does not necessarily either destroy his credibility or render what he has said unworthy of belief. Whether a witness thus assailed is telling the truth and to what extent he shall be believed is not only the right, but the duty, initially of the jury, and then of the trial justice on a motion for a new trial. While there may be instances when the probative force of testimony is destroyed by a witness's inconsistent or contradictory utterances, ¹ usually such inconsistencies or contradictions are either susceptible of a reasonable explanation or are of such insignificant importance as not to compel rejection of the testimony as incredible. There is no need to recite the alleged inconsistencies and contradictions upon which plaintiff relies. They were explainable and were explained by the trial justice. In the circumstances, the trial justice did not err in crediting testimony favorable to defendant and in accepting witnesses appearing on his behalf as truthful. Knightsville Loan Corp. v. Bankers Indem. Ins. Co., 65 R.I. 48, 13 A.2d 383; Elias v. Hartford Fire Ins. Co., R.I., 122 A. 529; Yellow Cab Co. v. Public Util. Hearing Bd., 99 R.I. 644, 210 A.2d 128; Carr v. General Insulated Wire Works, Inc., 100 R.I. 203, 213 A.2d 700; Gibbons v. Rhode Island Co., 37 R.I. 89, 91 A. 9.

In addition to the denial of her motion for a new trial, plain...