Zuckerman v. Tatarian, 7373.

• Decision Date: 25 November 1969
• Docket Number: No. 7373.,7373.
• Parties: Louis ZUCKERMAN, Plaintiff, Appellant, v. Rita L. TATARIAN, Georgiana Kelly, Rita Tatarian, Patricia Kelly, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

418 F.2d 878 (1969)

Louis ZUCKERMAN, Plaintiff, Appellant, v. Rita L. TATARIAN, Georgiana Kelly, Rita Tatarian, Patricia Kelly, Defendants, Appellees.

No. 7373.

United States Court of Appeals First Circuit.

November 25, 1969.

Martin Malinou, Providence, R. I., for appellant.

Paul V. Reynolds, Providence, R. I., for appellees.

Before ALDRICH, Chief Judge, WOODBURY,^* Senior Circuit Judge, and COFFIN, Circuit Judge.

WOODBURY, Senior Circuit Judge.

This appeal is from a judgment entered on a verdict for the defendants in an action for personal injuries arising out of the collision of two automobiles at an intersection of streets in Providence, Rhode Island. Federal jurisdiction rests upon the diversity of the citizenship of the parties and over $10,000 in controversy exclusive of interest and costs. Title 28 U.S.C. § 1332(a) (1).

The plaintiff-appellant presents 25 issues on his appeal. The briefs, oral arguments and record disclose only one deserving comment by this court.

The plaintiff introduced some rather indefinite evidence at the trial to show that as a result of the accident he suffered a retrograde amnesia which made it impossible for him to recall his actions during the second or two before the collision. On the basis of this evidence he requested an instruction in the charge that if the plaintiff because of his injuries suffered a loss of memory of the events immediately preceding and at the time of the actual collision then the jury might presume that he exercised due care for his safety. The court refused so to charge giving as its reason that retrograde amnesia had not been sufficiently established to warrant the charge and that the presumption could not be invoked because there were other witnesses as to the plaintiff's conduct at the time and immediately before the collision. We find this ruling entirely correct.

We need not pause to consider, and therefore do not decide, whether the evidence of the plaintiff's loss of memory is sufficiently substantial to warrant consideration by the jury. Whatever substance that evidence may have the fact remains that there was other testimony of the way the plaintiff was operating his automobile at the moment of the collision and immediately before from the driver of the other car involved, from a passenger in it and from a bystander. Under these circumstances it is clearly established by Rhode Island cases, and so far as we know elsewhere, that no presumption of due care on the plaintiff's part arises.

The Supreme Court of Rhode Island fully considered this matter in 1907 in Savage v. Rhode Island Co., 28 R.I. 391, 397, 398, 67 A. 633, wherein it summarized its analysis at page 398, 67 A. at page 636 in the sentence: "The cases distinctly show that such a presumption of a plaintiff's due care is a mere presumption of law, and has no weight, and so does not apply in cases where the testimony of eye-witnesses discloses the facts and circumstances of the accident, whether offered by the plaintiff or by the...