Waltz v. Aycrigg

• Decision Date: 14 November 1967
• Docket Number: No. 10578,10578
• Citation: 235 A.2d 338,103 R.I. 109
• Parties: Everett WALTZ v. Gerard AYCRIGG. Ex
• Court: Rhode Island Supreme Court

Page 338

235 A.2d 338

103 R.I. 109

Everett WALTZ v. Gerard AYCRIGG.

Ex No. 10578.

Supreme Court of Rhode Island.

Nov. 14, 1967.

James D. Thornton, Westerly, for plaintiff

Edward M. Botelle, Westerly, for defendant.

OPINION

PAOLINO, Justice.

This action of trespass on the case for negligence was heard before a justice of the superior court sitting with a jury. At the close of all the evidence, the defendant moved for a directed verdict. Pursuant to rule 46(a) of the rules of civil procedure of the superior court, then in force, the trial justice reserved decision and, after arguments of counsel, submitted the case to the jury. After the jury returned a verdict for the plaintiff in the amount of $350, the trial justice ruled that there was a question of fact for the jury and denied the motion for a directed verdict. He also denied the defendant's motion for a new trial. The case is before us only on the defendant's exceptions to the denial of his motion for a directed verdict and to the denial of his motion for a new trial. He has expressly waived all other exceptions.

This case involves an accident in which plaintiff's parked automobile was struck and damaged by defendant's motor vehicle during a blizzard at about 5:30 p.m. on the afternoon of February 4, 1961, on East avenue, a public highway in the town of Westerly. East avenue runs generally north and south. The accident occurred in the vicinity of Babcock Road which intersects the easterly side of East avenue and is located at a curve on East avenue.

At about 4:30 p.m. on the day of the accident plaintiff was driving southerly on East avenue on his way to his home on Babcock Road. It was very windy and snowy. There was about a foot of snow on the ground, but East avenue had been plowed completely. The plaintiff made three attempts to go up Babcock Road, which is on an incline. Being unable to do so, he backed his car into East avenue and parked it about 30 feet south of the intersection of East avenue and Babcock Road on the traveled part of the road. The car rested against a snow bank which was approximately 2 1/2 feet high and which was on the westerly side of East avenue. The plaintiff testified that the snow had been plowed over the curb and that the width of three cars or better was available for driving on East avenue. He stated that when he parked his car it was dark except for a street light over Babcock Road about 25 or 30 feet from where his car was parked. He admitted that when he left his car to go home he did not leave his automobile lights on.

The defendant's version of what happened is in substance as follows. About an hour after plaintiff had parked his car, defendant was proceeding south on East avenue. As he drove along he observed four, five or six other cars parked on the west side of the road on the right side of the snow bank. He testified that he was traveling about 10 to 15 miles per hour and the visibility was 40 to 100 feet. He was familiar with the area and had traveled East avenue many times. He first saw plaintiff's car when it was about two car lengths ahead of him; he tried to go to the left of plaintiff's car, went into a skid and struck plaintiff's automobile. His testimony is as follows:

'As I came along there, as I say, it was snowing very hard, and all of a sudden, I was aware that there was a car ahead of me, and I tried to avoid him by going to the left, and then the car started to slide, and I threw it to the right in the hope of correcting the skid, and tried to get in the snowbank behind the car.'

The testimony as to the width of the traveled portion of the road between the snow banks is in conflict, defendant's testimony being that it was two car widths while plaintiff testified that it was three car widths or better.

An auto repair man testified that the damage to plaintiff's car amounted to a total of $520.

We consider first defendant's exception to the denial of his motion for a directed verdict. His first contention is that on the evidence and established physical facts plaintiff was guilty of contributory negligence as a matter of law. On this record there is no merit in his contention.

In accordance with our well-established rule, the trial justice in passing on a motion for a directed verdict is obliged to view the evidence in the light most favorable to the adverse party, to draw all reasonable inferences from the evidence favorable to that party, and to refrain from weighing the evidence and passing upon the credibility of the witnesses. ¹ Compo v. Dexter, R.I., 222 A.2d 681, 682; Nicholson v. Narragansett Tastee-Freez Co., R.I., 222 A.2d 776, 778.

While it is true that in a proper case the trial justice has the power to treat the issue of contributory negligence as a question of law and to determine a motion for a directed verdict accordingly...