Solomon v. Shepard Co.

• Citation: 200 A. 993
• Decision Date: 21 July 1938
• Docket Number: No. 7964.,7964.
• Parties: SOLOMON v. SHEPARD CO.
• Court: Rhode Island Supreme Court

200 A. 993

SOLOMON

v. SHEPARD CO.

No. 7964.

Supreme Court of Rhode Island.

July 21, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Mortimer A. Sullivan, Judge.

Action of trespass on the case for negligence by William Solomon against the Shepard Company to recover for injuries sustained in a truck collision. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled and case remitted for entry of judgment on the verdict.

Israel H. Press, McGovern & Slattery, and James A. Higgins, all of Providence, for plaintiff. Sherwood & Clifford, Sidney Clifford, and Raymond E. Jordan, all of Providence, for defendant.

CAPOTOSTO, Justice.

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This action of trespass on the case for negligence was tried by a justice of the superior court sitting with a jury and resulted in a verdict for the defendant. The plaintiff's motion for a new trial was denied. The case is now before this court on plaintiff's bill of exceptions, containing an exception to the denial of his motion for a new trial and nineteen other exceptions to rulings during the trial. Excluding exception 5, upon which he relies, the plaintiff has expressly waived the first ten exceptions in his bill of exceptions.

It appears from the evidence that the plaintiff was injured in a collision between a truck in which he was riding, and a truck operated by an agent of the defendant. The accident happened in the early afternoon of December 13, 1934, at the junction of the Taunton Pike and Jacobs street in the town of Seekonk, Massachusetts. Jacobs street does not cross the main highway, known as the Taunton Pike, which runs in a general easterly and westerly direction. It enters that highway from the north at approximately a 45 degree angle. The weather and road conditions were bad. Some snow was falling and the road was slippery because of an icy condition.

The evidence shows that the plaintiff conducts a butcher business in the city of Providence; that he and Hyman Stone each owned one-third of the capital stock of the New England Dairy Cows, Inc., which had no board of directors, the plaintiff being the president and Stone the vice-president of that corporation; that the corporation had a farm in Seekonk, where cows were kept by the corporation; that the plaintiff went to this farm on the average of two or three times a week on the business of the corporation; and that the truck in which he was riding belonged to the corporation.

The plaintiff testified that on the day of the accident he and Stone, who was driving the truck in an easterly direction on the Pike, were on their way to the farm on "business of the corporation * * * to look at some cattle"; that the plaintiff told Stone to drive "just right, not too fast not too slow"; and that Stone drove at about twenty-five to thirty miles an hour. He further testified that a truck passed them just beyond the Berry Farm, so-called, some three or four miles west of Jacobs street; that he did not know whether they followed this truck or how close they were to it, if they did; and that all he could remember from the time they passed the Berry Farm until he found himself in the hospital after the accident was that he kept telling Stone "he shall be careful."

Stone testified to the same effect up to the time when, according to his testimony, the defendant's truck passed him at the Berry Farm. From then on his testimony in substance is that he followed the defendant's truck at a distance of 40 to 50 feet and at a speed of between 15 and 20 miles an hour, because it was "awful slippery", due to the wet snow freezing on the ground; that on reaching Jacobs street the defendant's truck pulled over to the right and he turned to his left to enter Jacobs street, when the defendant's truck, suddenly and without warning, swung to its left and struck his truck with its side as the two trucks were in the opening of Jacobs street; and that both he and Solomon were thrown out of the truck as it struck a pole to his left at that corner. This witness admitted the paying of a fine of $20 on a charge of driving so as to endanger life at the time of the accident.

The defendant's driver testified that he was driving a closed truck, equipped with a mirror on the left-hand side, which permitted him to see to his rear except for a space of about 50 feet directly in back of the truck; that he did not recall passing any truck between the Berry Farm and Jacobs street; that, as he came to within 200 feet of that street, he reduced his speed from about 25 to 8 or 10 miles an hour; and that, looking in the mirror and seeing nothing to the rear of his truck, he made a wide left turn so as to enter the right-hand side of Jacobs street. He further testified that as the front end of his truck entered that street he heard a screeching of brakes, and immediately thereafter his truck was struck in the rear; that he stopped as soon as he could and, walking back to the corner, he saw the plaintiff lying in the road and a truck against a pole at that point, headed in a westerly direction.

It appears in evidence that this witness was fined $2 for failure to give a signal with his hand, or mechanical device, of his intention to make a left turn, as required by section 12, regulations of the Massachusetts Department of Public Works, 1934. The plaintiff also offered to prove, by means of a certain certified record, that this witness had been convicted of driving so as to endanger life as a result of the accident. Upon an examination of that record by the court, this offer of proof was denied. This ruling is the subject of plaintiff's eleventh, twelfth and thirteenth exceptions.

The only other witness on the question of liability was Frank J. Pearl, who was in a field south of the intersection. His testimony, which in some particulars is at variance with a signed statement previously made by him, tends to show that the truck, in which the plaintiff was riding and which, according to this witness, was being driven at an estimated speed of about 40 miles an hour, went into a skid at the intersection; that its rear end moved to the right in a semi-circle, struck the defendant's truck underneath the tailboard, and then headed for and struck the pole at the corner of the intersection.

The damage to the two trucks, resulting from the accident, in so far as pertinent, was as follows. The truck in which the plaintiff was riding had a dent in the body on the right side, with some damage to its front, which Stone attributed to striking the pole. The defendant's truck was equipped with a horizontal spare tire carrier underneath the rear of the truck. The only damage to this truck was that the brackets supporting the carrier were bent and pushed forward about eight inches.

To prove the law of Massachusetts on the question of imputed negligence, the plaintiff, at the close of his case and with the consent of the defendant, put in evidence three decisions of the Massachusetts supreme court. They are Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387; Donoghue v. Holyoke Street Ry. Co., 246 Mass. 485, 141 N.E. 278; Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 170 N.E. 77. In the Donoghue Case the court considers the question of imputed negligence where the facts show a common or joint enterprise, and, quoting from Barry v. Harding, 244 Mass. 588, 592, 139 N.E. 298, says: "'As was said in Barry v. Harding [supra] * * * the evidence does not warrant a finding that the plaintiff had an equal right with the driver in respect of the control of the automobile. * * * It does not warrant a finding that he had the power to control the means, or an equal right to direct the conduct of the undertaking.'" (141 N.E. page 280.) In Caron v. Lynn Sand & Stone Co., supra, the court again refers to the language just quoted from the Barry Case, supra, and applying that law to the facts in the case then before the court, at page 347, 170 N.E. at page 80, of the opinion, says: "Although there was evidence that each plaintiff and Smith were engaged in building operations and all followed the same occupation, there was no evidence to warrant a finding that when the plaintiffs were riding with Smith they were engaged in any business or occupation in which they were jointly interested."

The defendant in the instant case moved for a directed verdict, without closing its case, at the conclusion of the plaintiff's case. This motion being denied, the defendant then moved for a nonsuit, which was also denied. The defendant was then permitted, over the objection of the plaintiff, to introduce evidence in defense. This ruling of the trial justice is the subject of the plaintiff's fifth exception.

At the conclusion of all the testimony, the court granted a request by the defendant, over the plaintiff's objection, that the following questions be submitted to the jury for special findings: (1) "At the time of the accident were the plaintiff and Hyman Stone engaged in a common enterprise?" (2) "Was Hyman Stone guilty of any negligence which in any respect was a proximate cause of the accident?" The jury answered both questions in the affirmative. The plaintiff's fourteenth exception questions the ruling of the court on this point.

The plaintiff's fifth exception questions the right of a defendant, who moves for a directed verdict without closing his case, to present evidence in defense upon the denial of such motion. The plaintiff takes nothing by this exception. In the ordinary case, the usual motion at the close of the plaintiff's testimony is a motion for a nonsuit, but, in rare instances, a motion for a directed verdict may be made by a defendant without closing his case at that time. Both of these motions are then addressed to the discretion of the court and the denial of such motions is not open to exception. Oates v. Union Railroad Co., 27 R.I. 499, 63 A. 675.

A motion for a nonsuit questions the sufficiency of the plaintiff's evidence in proving a...