United Electric Rys. Co. v. Pa. Petroleum Products Co.

• Decision Date: 17 May 1935
• Docket Number: No. 7573.,7573.
• Parties: UNITED ELECTRIC RYS. CO. v. PENNSYLVANIA PETROLEUM PRODUCTS CO.
• Court: Rhode Island Supreme Court

178 A. 861

UNITED ELECTRIC RYS. CO.

v. PENNSYLVANIA PETROLEUM PRODUCTS CO.

No. 7573.

Supreme Court of Rhode Island.

May 17, 1935.

Exceptions from Superior Court, Providence and Bristol Counties; Leonidas Pouliot, Jr., Judge.

Action of trespass on the case by the United Electric Railways Company against the Pennsylvania Petroleum Products Company. The jury returned a verdict for plaintiff, and defendant brings exceptions to the refusal of a directed verdict, and the refusal to grant its motion for new trial.

Exceptions overruled, and case remitted, With direction.

Clifford Whipple and Frank J. McGee, both of Providence, for plaintiff.

William A. Gunning, of Providence, for defendant.

BARER, Justice.

This is an action of trespass on the case for negligence in which the jury returned a verdict for the plaintiff. No question is raised by the defendant as to the amount of damages assessed. The case is before this court on the defendant's exceptions to the refusal of the trial justice to direct a verdict in its favor, and to his refusal to grant its motion for a new trial.

The evidence discloses that the basis for this suit is a collision which occurred on March 2, 1932, at about 6:25 p. m., at the intersection of Steeple and Canal streets in the city of Providence, between a passenger bus, owned and operated by the plaintiff company, and a large oil truck belonging to the defendant corporation. At the time, the weather was clear, the lights of both vehicles were on, and the interior of the bus was illuminated. The bus, proceeding westerly, came out of Steeple street, a one-way thoroughfare, bore somewhat to its left in crossing Canal street toward Exchange place, and was struck in the center of the left side by the defendant's truck, which was going in a northerly direction on said last named street. At the time of the accident, the entire length of the bus was some appreciable distance into Canal street.

The principal contention of the defendant is that the operator of the bus was guilty of contributory negligence as a matter of law, and that therefore the trial court should have directed a verdict against the plaintiff. The particular act of omission charged by the defendant is that the bus driver, having noticed the defendant's truck approaching the intersection, failed to keep a proper lookout toward it so as to enable him to avoid the collision as the vehicles converged.

From the plaintiff's testimony, it appears that the bus was proceeding slowly on Steeple street as it neared the corner of Canal street. It slowed still more to permit an automobile going northerly on Canal street to pass. The operator then looked toward his left and saw the lights of defendant's truck something over 200 feet away on Canal street, coming toward the intersection. The speed of the truck was estimated to be in the neighborhood of twenty miles per hour. At this time, the front of the bus was about even with the east curb line on Canal street. The bus continued out into that street at a slightly increased speed, and the operator looked toward his right to see if any traffic was coming from that direction. There being none, he then looked ahead so that he would not run into the curbing on the other side of Canal street and in order to proceed toward Exchange place. He then caught sight of the defendant's truck on his life, seventeen or eighteen feet away and proceeding at about the same speed as before. He stopped the bus immediately, and almost at once it was struck.

It is well established that on a motion for direction of a verdict for a defendant, if, on any reasonable view of the testimony, the plaintiff can recover, then the case must be submitted to the jury. All legitimate inferences, favorable to the plaintiff from the evidence presented, must be given effect. On such a motion the weight of the evidence and the credibility of the witnesses is not before the trial court for determination. Reddington v. Getchell, 40 R. I. 463, 101 A. 123; Douglas v. First National Stores, Inc., 54 R. I. 278, 172 A. 723. We have also frequently held that the question of contributory negligence ordinarily is one of fact to be determined by a jury, unless the evidence is so clear that only one reasonable inference can be drawn therefrom. O'Donnell v. United Electric Railways Co., 48 R. I. 18,134 A. 642; Cunningham v. Walsh, 53 R. I. 23, 163 A. 223.

In support of its claim that the trial justice erred in not granting its motion for a directed verdict, the defendant has cited four decisions of this court, viz.: Correia v. Cambra, 51 R. I. 472, 155 A. 667; Labbee v. Frenze, 53 R. I. 168, 165 A. 217; Lane v. Beede, 54 R. I. 168, 171 A. 371; Wildenhaim v. Knight (R. I.) 173 A. 83. We have carefully examined these cases, and in our opinion they are all distinguishable on the facts from the one now before us.

In Correia v. Cambra, supra, the plaintiffs evidence showed that when 100 feet from an open intersection in the country, he looked and saw defendant's automobile 300 feet away on the other road. He did not observe the speed of this car, but other evidence fixed it at between forty and fifty miles per hour. The plaintiff did not look again as his car reached the intersection, but started to cross at about fifteen miles per hour, and was struck. The direction of a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence as a matter of law in failing to note the speed of the approaching car, and in failing to look again at the intersection, was upheld by this court.

In Labbee v. Frenze, supra, the jury found for the plaintiff, and on exceptions this court remitted the case for...