Whalen v. Dunbar

• Decision Date: 18 January 1922
• Docket Number: No. 5489.,5489.
• Citation: 115 A. 718
• Parties: WHALEN v. DUNBAR et al.
• Court: Rhode Island Supreme Court

115 A. 718

WHALEN

v. DUNBAR et al.

No. 5489.

Supreme Court of Rhode Island.

Jan. 18, 1922.

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

Trespass on the case by Mary Whalen against Clarence M. Dunbar and others. Verdict for plaintiff, and defendants except. Exceptions sustained, with leave to show cause.

Baker, Spicer & Letts, Ira Lloyd Letts, and James I. Shepard, all of Providence, for plaintiff.

Waterman & Greenlaw, Lewis A. Waterman, Ralph M. Greenlaw, and Charles E. Tilley, all of Providence, for defendants.

RATHBUN, J. This is an action of trespass on the case for negligence brought to recover for personal injuries suffered by the plaintiff and caused by a collision between an automobile in which she was riding as a passenger and another automobile owned by the defendant and operated by his chauffeur. The trial in the superior court resulted in a verdict for the plaintiff for $1,500. The case is before this court on the defendant's exception to the ruling of the trial court refusing to direct a verdict for the defendant.

The collision occurred a short distance south of "Dago switch" in the town of Warwick near the village of Norwood on the state highway leading from Apponaug to Providence. Said highway runs in a northerly and southerly course and has a macadam surface 8 feet in width. A street car track is located on the extreme westerly side of the highway. The plaintiff and four gentlemen were passengers in a Ford touring car owned and operated by William Brown. While said touring car was proceeding on the right-hand side of the macadam surface of said highway in a northerly direction and following another Ford automobile, the speed of the front automobile was suddenly reduced. To avoid running against the rear end of the front automobile Brown turned his automobile to the left, and when one of the front wheels of his automobile was about on a line with the rear wheels of the front automobile Brown's automobile collided with the defendant's automobile, which was being driven in a southerly direction. Witnesses for the plaintiff gave various estimates as to the speed at which defendant's automobile was running at the time the automobile in which the plaintiff was riding turned to the left. Some of her witnesses estimated the speed of defendant's automobile to be from 55 to 60 miles per hour. The highest estimate given by the defendant's witnesses was 25 miles per hour. The defendant's counsel admit that Brown was not the servant of the plaintiff, that she had no control over him, and that contributory negligence cannot be attributed to the plaintiff.

The plaintiff contends that it was the province of the jury to decide whether the defendant's automobile was proceeding at an unreasonable rate of speed and whether his chauffeur had the last clear chance to avoid the accident, and that the trial court did not err in submitting the case to the jury upon these issues.

John W. Holland, one of the passengers in Brown's automobile and a witness called by the plaintiff, testified as follows:

"When he came out he had practically got out half of his machine, but not quite, on the other side. * * * I didn't know what was the matter. Q. When you turned out how far did you turn out? A. We were at an angle when we were struck. Q. At an angle turning out when you were struck? A. Yes, sir. * * * Q. But your car was still practically upon the right side of the highway? A. Not quite. It hadn't quite got out. It was at an angle. Q. Had it got up to the car ahead? A. The front wheels of our car was about on a line with the rear wheels of the car which was almost stopped. Q. At the time you were struck? A. Yes, sir. Q. And the rear of your car was still back upon your right-hand side of the road? A. Practically it was. * * * Q. As you pulled to the left from behind that car weren't you struck on the right-hand side of your machine? A. I couldn't say because it came so quick. I really couldn't say. Q. It was right there when you pulled out? A. Well, not exactly when we pulled out; no, sir, we pulled out gradually. Q. It was there before you got out? A. Yes, sir."

Owen Joseph Donnelly, a passenger in Brown's automobile and a witness called by the plaintiff, testified as follows:

"Q. You say that Mr. Brown turned out? A. Yes, sir. Q. Which way had he turned out?

A. To the left; yes, sir. Q. Had the turn that he made been completed when the collision occurred? A. No, sir; it was not. Q. Then the turn was not completed when the accident occurred? A. No, sir; it wasn't. Q. You was just pulling out at that time? A. Yes, sir; you are right. Q. You never turned way out? A. No, sir; we were on an angle. The collision came. Q. Almost instantly? A. Yes, sir; almost, in about a second."

Frank Stephenson, a passenger in Brown's automobile and a witness called by the plaintiff, testified as follows:

"Q. While you were turning out you were struck? A. Just as—we were not quite straight. When we were struck we were not quite straight. We were on the turn. Q. You were on the turn in the process of turning out? A. Process of turning out. Q. Weren't you turning out when you were struck? A. Yes, sir. * * * Q. When he said, 'Almost instantly,' you said 'almost,' did you not? A. Yes, sir; I will say it was almost. Q. In about a second? A. No, sir; not a second. * * * Q. How long did they continue to run along after he began to make the turn before the collision? A. A couple of seconds, I guess. This all happened so quick. Q. A couple of seconds? A. Yes, sir."

Leo G. Roy, a witness called by the plaintiff, testified as follows.

"Q. Will you tell us further as to what the Ford machine did after that, if you recollect? A. Well, after that— Q. Before it was struck. A. I saw it swerve, and it seemed to me as though it never gone any further. I don't know whether it was trying to get back, but it got struck about the same place he swerved out. * * * A. The rear Ford wheel, the front Ford wheel of the rear Ford, was about even with the back wheel of the forward Ford machine."

Tony Giardano, a witness called by the plaintiff, testified as follows:

"Q. Just as he pulled out they were struck? A. Yes, sir."

The plaintiff testified as follows:

"Q. When you were struck he was pulling to the left? A. Yes, sir; I think he was. Q. The machine hadn't got out into the road at the time you were struck? A. No; it hadn't."

Some of the plaintiff's witnesses testified that four or five seconds elapsed between the time when the automobile in which the plaintiff was riding commenced to turn to the left and the time when the collision occurred; also that the defendant's automobile was 500 or 600 feet away when the automobile in which the plaintiff was a passenger commenced to turn to the left. Does testimony of such a character, in view of the physical facts presented and other contradictory testimony by the same witnesses, entitle the plaintiff to go to the jury on the question of the last clear chance of the...