Surmeian v. Simons

• Citation: 107 A. 229
• Decision Date: 08 July 1919
• Docket Number: No. 5190.,5190.
• Parties: SURMEIAN v. SIMONS.
• Court: Rhode Island Supreme Court

107 A. 229

SURMEIAN

v. SIMONS.

No. 5190.

Supreme Court of Rhode Island.

July 8, 1919.

Vincent, J., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Hagop S. Surmeian against C. C. Simons. Verdict for defendant, plaintiff's motion for new trial granted, and defendant excepts. Exception overruled, and case remitted.

Jasper Rustigian and Cooney & Cooney, all of Providence, for plaintiff.

McGovern & Slattery, of Providence, for defendant.

SWEETLAND, J. This is an action of trespass on the case to recover damages for injuries alleged to have been suffered by the plaintiff through the negligence of the defendant in the operation of an automobile.

The case was tried before a justice of the superior court sitting with a jury, and resulted in a general verdict for the defendant with a special finding adverse to the plaintiff. The plaintiff filed his motion for a new trial, which was granted by said justice. The case is before us upon the defendant's exception to the decision of said justice granting a new trial.

It appears that at about 10 o'clock on the night of August 14, 1917, the plaintiff was driving a two-seated carriage upon Elmwood avenue in the town of Warwick; that he was proceeding toward the north, and was upon the extreme easterly side of the traveled part of the road; that when he had reached a point near the intersection of Pawtuxet avenue with Elmwood avenue, about one-third of a mile south of the bridge over which Elmwood avenue crosses the Pawtuxet river, his carriage was struck from behind without warning by an automobile operated by the defendant, who at that time was also proceeding northward on Elmwood avenue. As a result of this collision, the carriage of the plaintiff was injured, his horse was caused to run away, and the plaintiff claims that he received personal injuries. At the time of the accident, the plaintiff was alone in his carriage. The defendant was accompanied in his automobile by three friends and was returning to Providence from a pleasure ride to East Greenwich. Said night was warm, the weather was fair, but the moon was not shining. This part of Elmwood avenue is in a suburban district and is lighted by incandescent electric lights. There is a conflict in the evidence as to the distance between said lights and as to the extent to which said lights illuminated the road on the night in question.

The defendant claims that the plaintiff was guilty of contributory negligence, in that at the time of the accident he was driving said carriage in violation of the provisions of chapter 1028, Pub. Laws 1914. Said chapter, among other things, provides as follows:

"Sec. 16. Every vehicle, when located or operated on any public highway or bridge, shall display one or more lights on said vehicle so placed as to be visible both in the front and the rear, during the period from one hour after sunset to one hour before sunrise."

Whether or not the plaintiff, just before the accident, did display one or more lights on his carriage so placed as to be visible from the front and the rear, was one of the disputed issues in the case. The testimony on this point was conflicting; the jury found specially that the plaintiff did not. From an examination of the transcript of evidence, we find some warrant for the plaintiff's claim that this was treated by the defendant during the trial as the controlling issue. The plaintiff further contends that, notwithstanding the instruction of the justice, the jury acted under the misapprehension that their special finding upon this point was determinative of the case. As a matter of law, the finding that the plaintiff was acting in disregard of the statute is not conclusive upon the question of his right to recover. The purpose of the statutory provision is plain, viz., to apprise travelers, between the hours named, of the presence and location of vehicles upon public highways and bridges. In case of a collision during those hours between a traveler who is complying with the statute and a vehicle not displaying one or more lights, if such traveler is exercising reasonable care and the collision is due to ignorance on his part of the presence of said unlighted vehicle in the dark highway, then the absence of such light or lights may be considered as an efficient and immediate cause of the collision, and the fact of the violation of the statute is evidence of negligence on the part of the driver of the unlighted vehicle. If, however, the collision between such traveler and the unlighted vehicle occurs in the nighttime upon a highway which is itself so "well lighted that the unlighted vehicle can be plainly seen by other travelers, then the fact of the violation of the statute is immaterial in the consideration of the negligence of the respective parties, because the absence of lights upon the vehicle had no causal relation to the collision. Therefore the condition of the light in the highway in the neighborhood of the place of the accident in question became a material matter in the consideration of the case. According to the testimony of some of the witnesses who, as far as the record discloses, are disinterested, said highway was so light that at the point in question the defendant, if he had been exercising reasonable care, could not have failed to see the carriage of the plaintiff in front of him in ample time to have avoided it. Witnesses for the defendant testified that at the time and place of the accident the highway was dark, so that the carriage of the plaintiff could not be seen by the defendant until he was so close to it that the collision could not be prevented.

Upon the motion of the plaintiff for a new trial, there was presented to the judge who presided with the jury the question of whether the jury's verdict did justice between the parties. He was to pass upon that question after a review of the evidence and a consideration of where lay the fair preponderance of the evidence upon the issues in the case, applying in such consideration his conclusions as to the credibility of witnesses and the value which should be placed upon their testimony. When a justice presiding has decided such a motion adversely to a verdict, we must assume that he has reached his conclusion in the manner which we have outlined and that he finds the verdict to be unjust; unless it shall appear in his decision that his determination is based upon other considerations. We have held that the question of the weight of evidence and the credibility of witnesses is not for the trial judge upon a motion to direct a verdict; but upon the consideration of a motion for a new trial the determination of these questions is presented to him and it is his duty to pass upon them, for in that way alone can such justice exercise the function of reviewing the jury's verdict which has been placed in him by the statute.

The defendant contends that the preponderance of the evidence supports the verdict, and that in setting it aside said justice has usurped the functions of the jury. In the consideration of an exception to the decision of a trial justice upon a motion for new trial, this court has not adopted the position taken by courts of last resort in some states where the relation of the trial court to the appellate is similar to that which exists between the superior court and this. We have not held that the finding of a trial judge upon the validity of a jury's verdict was binding upon us, but we will for ourselves examine the transcript or evidence. If from such examination it appears to us that the determination of the trial judge upon the weight of the evidence is clearly wrong, or that his decision was not made upon conflicting testimony, but was based upon a misconception of the evidence in the case, we will not approve his decision. In the ordinary case, however, where such justice has approved or set aside a verdict in accordance with his view as to the value of evidence clearly conflicting, we will regard such determination as of great persuasive force in appellate proceedings before us.

It was upon the passage of the Court and Practice Act that jurisdiction to consider a motion for new trial after verdict was given to a justice presiding in a jury trial and the right of exception to his decision was conferred. In Wilcox v. R. I. Co., 29 R. I. 292, 70 Atl. 913, after the adoption of the Court and Practice Act, this court first stated definitely the rule which should govern a justice of the superior court in passing upon a motion for new trial on the ground that a verdict is contrary to the weight of the evidence. In that case, also, this court applied the principle that, when the evidence before the jury was conflicting, the decision of the trial court in approving or setting aside the jury's verdict should be given great weight in proceedings before us. Wilcox v. R. I. Co. was before us upon an exception to the decision of a superior court justice sustaining a jury's verdict; afterwards, in Noland v. R. I. Co., 30 R. I. 246, 74 Atl. 914, and in McMahon v. R. I. Co., 32 R. I. 237, 78 Atl. 1012, Ann. Cas. 1912D, 1223, the court applied the same principle to the decision of a trial court setting aside the verdict of a jury. In McMahon v. R. I. Co. the position of this court was very carefully considered and explained. These cases have been approved and followed in many subsequent cases and must be regarded as declaring the settled rule in this state. In Wilcox v. R. I. Co. and in McMahon v. R. I. Co. a number of cases were cited from other jurisdictions. It is not, however, upon the authority of the cited cases that the rule in the Wilcox and the McMahon Cases is primarily based, but upon an interpretation of the legislative intent, which this court has found in the statutory provisions under which motions for new trial are decided by justices of the superior court, and exceptions to their decisions are...