Wroblewski v. Grimley, 9857

• Decision Date: 21 November 1958
• Docket Number: No. 9857,9857
• Citation: 146 A.2d 161,88 R.I. 228
• Parties: Anna H. WROBLEWSKI v. Samuel J. GRIMLEY. Ex.
• Court: Rhode Island Supreme Court

Page 161

146 A.2d 161

88 R.I. 228

Anna H. WROBLEWSKI v. Samuel J. GRIMLEY.

Ex. No. 9857.

Supreme Court of Rhode Island.

Nov. 21, 1958.

Zucker & Winsten, Harold H. Winsten, Providence, for plaintiff.

John A. O'Neill, City Sol., Harvey J. Ryan, Asst. City Sol., Pawtucket, for defendant.

PAOLINO, Justice.

This is an action of trespass on the case for negligence arising out of a collision at a street intersection in the city of Pawtucket between an automobile owned and operated by the plaintiff and a motor vehicle owned by said city and operated by the defendant, who at the time was employed by the city which was then engaged in sanding icy city streets. The plaintiff seeks to recover for personal injuries to herself and for damage to her automobile.

The instant case and a companion case entitled Wroblewski v. Clark, R.I., 146 A.2d 164, were tried together before a justice of the superior court sitting with a jury. In the latter case the trial justice directed a verdict in favor of the defendant. In the instant case, however, he denied defendant's motion for a directed verdict and the jury thereafter returned a verdict for the plaintiff for $2,000.

The case is here on defendant's exception to the denial of his motion for a new trial. Under our well-established practice his exception to the denial of the motion for a directed verdict having been neither briefed nor argued is deemed to be waived.

Although the cases were heard together before us, we have treated them separately. See our opinion filed this day in Wroblewski v. Clark, R.I., 146 A.2d 164.

The defendant bases his exception to the denial of his motion for a new trial on the grounds that the verdict is against the law, the evidence and the weight thereof. In addition he contends that the verdict was grossly excessive.

The collision occurred on February 3, 1955 about 2:15 p. m. at or near the intersection of Walcott and Summit streets, public highways in the city of Pawtucket. Walcott street, which runs east and west, is intersected by Summit street, which runs north and south. It appears from the evidence that traffic at such intersection was controlled by a traffic light then in operation. It also appears that on the day of the accident the city was engaged in spreading sand on icy city streets; that defendant was operating a motor vehicle known as a payloader; that said payloader was being used to load sand upon city trucks; and that at the time of the accident he was en route to the city garage to load the sand onto the trucks.

The evidence is conflicting as to what happened at the time of the collision. The plaintiff testified in substance that she was traveling south on Summit street at about ten or fifteen miles per hour; that as she approached to within approximately one car length of the intersection the overhead traffic light changed from red to green; that she did not apply her brakes nor sound her horn; that the payloader struck the left center part of her automobile causing extensive damage thereto; and that she did not see the payloader until immediately before the impact. She also testified that there were two women passengers in her car. The record fails to disclose that either of these passengers was called as a witness.

Charles F. Otton, who appeared as a witness for plaintiff, testified that prior to the collision plaintiff had stopped her automobile at the intersection; that the traffic light facing her was red; that she proceeded to cross the intersection when the light changed to green; that defendant crossed the intersection at a pretty good speed with the light set against him; that three other trucks were following defendant at a 'pretty good speed'; and that the payloader pushed plaintiff's automobile 20 or 25 feet down the road.

On the other hand defendant testified that he was traveling west on Walcott street at less than three miles per hour; that when he arrived at the intersection he stopped for a traffic light which was red; that when the light turned to green he started to proceed through the intersection; that plaintiff's automobile suddenly appeared in front of him coming from his right; and that he immediately applied his brakes, but the bucket of the payloader, which protruded several feet in front of the cab, struck the left center portion of plaintiff's automobile and caused extensive damage thereto.

In his decision denying the motion for a new trial, the trial justice stated that in his opinion the case was based entirely on the question of credibility. He referred specifically to the conflicting evidence relating to the traffic light, to the speed of the motor vehicles, and to the testimony on the question of whether plaintiff's automobile had come to a stop at the intersection. He also stated that in exercising his own independent judgment he felt that the jury must have given more credence to plaintiff's evidence of what happened than it gave to that of defendant. He concluded that the verdict did justice between the parties and he therefore denied the motion.

The defendant's contention that plaintiff was guilty of contributory negligence as a matter of law is without merit. Assuming that the...