Carr v. . American Locomotive Co. , 31 R.I. 234 ( 1910 )

I can not consent that $22,895.00 shall be taken from this defendant and appropriated to this plaintiff, upon this record.

In the majority opinion there is no question made that, upon the testimony in the case, the trial justice did his plain duty and set the verdict aside, as this court has twice done before, saying, on the first occasion (26 R.I. 180-188): "The evidence, therefore, very strongly preponderates against the verdict on every point urged to sustain it;" and on the second occasion (29 R.I. 276-285): "The evidence very strongly preponderates against the plaintiff as to the condition of the stem at the time of the accident and as to the identity of the stem in the exhibit with the stem in use at the time of the accident." It is not questioned either, that, if this case were before this court for the first time, the verdict would be set aside for the same reason. This is one of that class of cases in which a sympathetic jury, contemplating a crippled and maimed plaintiff, has, perhaps not unnaturally, yielded to emotion rather than to evidence, as have the other juries before whom the case has been presented, and as still other juries may do if it should be tried again. If the duty of the court is ever to be performed to prevent injustice, this is such a case, inasmuch as I understand this to be the largest verdict of this nature ever returned in this State.

Article XII of amendments to the constitution has granted to this court final revisory and appellate jurisdiction upon all questions of law, quite as amply as it secures the right of trial by jury, viz.: "Sec. 1. The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity," and the determination of the question whether the evidence is sufficient to support a verdict is now and always has been a question of law for the determination of the court. This revisory and appellate jurisdiction thus constitutionally conferred is "final" by the express provisions of the constitution, and is not to be ousted by the verdict of a jury however often repeated.

In considering the effect of the adoption of article XII of amendments to the constitution, it is said by Douglas, C.J., inHiggins v. Tax Assessors of Pawtucket, 27 R.I. 401, 404: "The Supreme Court remains the court of last resort, the embodiment of ultimate judicial power, and is given irrevocably the instruments which are required to make its supervisory jurisdiction effectual. . . . The ultimate supervisory jurisdiction over all inferior courts and tribunals given to the Supreme Court by the constitution is inherent in its nature as a Supreme Court and in so far as it is ultimate can not be placed concurrently in an inferior court; and the final determinations of the Supreme Court are to be accepted as law by all other tribunals." The doctrine thus advanced is in harmony with the decision of this court inFloyd v. Quinn, 24 R.I. 147, PP. 149, 152 (1902), in which it is said by Stiness, C.J.: "We do not question that in establishing a Supreme Court there is something in a name. The provision that there shall be a Supreme Court clearly implies that it is not to be subordinate to any other court or tribunal, and that it is to exercise the highest of the judicial functions. . . . If a certain jurisdiction is given by the constitution to a court, it cannot be taken away or diminished by any legislation." Upon the doctrine advanced in the majority opinion, that this court will not now even examine this record to ascertain whether or not the evidence sustains this verdict, it is indisputable that that quality of finality is given to this finding of the jury, even if unsupported by the evidence, which the constitution has vested in the determination of this court and not elsewhere. It is not the assumption of infallibility on the part of the court to revise and to reverse, if need be, on matter of law, the verdict of a jury, but it is the exercise of a plenary power and the discharging of a plain duty granted and imposed by that organic law which we are under obligation to support and defend, and it is thus a duty which we are not at liberty to renounce. The cases cited in the majority opinion referring to the so-called doctrine of concurring verdicts, so far as they are taken from the decisions of this State, were all rendered before the adoption of article XII of amendments in 1903, and so far as they are cited from the courts of other States, it is sufficient to repeat the language of this court in Gunn v. Union Railroad Company, 27 R.I. 320, 353, relative to the effect of a verdict of a jury in a civil case at the time of the adoption of the present constitution, viz.:

"Prior to the adoption of the constitution, the verdict of a jury in a civil case possessed no element of finality if appealed from or if reviewed, and such elements of finality as then appertained to jury trials in civil cases arose only after at least two concurring verdicts free from error in law as well as from misconduct at the trial, and to obtain two such concurring verdicts three jury trials might be required. It is obvious that this was a very different requirement from the requirement of the common law of England in this respect, and upon which the argument of the plaintiff is based. His contention, indeed, would require the court to impute to the finding of a verdict by a jury a finality prior to the adoption of the constitution, which could, at least, only be given by two juries and which might require the consideration of three juries. And this without reference to any action of king or of General Assembly.

"As it is evident that the precedents and principles of the common law of England were not decisive of the effect of a verdict of a jury in a civil case in Rhode Island under the law of the State as it existed at the adoption of the constitution, so it is equally evident that the anomalous and unique conditions which prevailed here are not precedents in States in which the rule of the common law of England in this respect, has always remained in full force."

Section 15 of article 1 of the constitution is as follows:

"The right of trial by jury shall remain inviolate."

In Gunn v. Union R.R. Co., 23 R.I. 289, 291, it is said, by Mr. Justice Rogers, of this provision: "Article 1, Section 15, means simply that in those proceedings in which a right to trial by jury exists at the time of the adoption of the constitution the right shall still continue: the constitution requiring the conservation, not an extension of the right of jury trial.Crandall v. James, 6 R.I. 144, 148; Matthews v. Tripp,12 R.I. 256, 258; Bishop v. Tripp, 15 R.I. 466, 469; Merrill v. Bowler,20 R.I. 226, 228; The Narragansett Indians, 20 R.I. 715, 766."

I have carefully read every one of the 1,520 pages of the record of this trial, which lasted eleven days, and am of the opinion that the action of the trial justice in setting the verdict aside was right. The majority opinion does not question the propriety of such action on his part. While the constitution and laws of this State remain as they now are it is just as much the imperative duty of this court to set aside verdicts unsupported by sufficient evidence as often as may be necessary to do justice as it is the duty of the court to take such action on the first trial. When the duty of this court to reverse verdicts in such cases is restricted by the constitution and the laws within limits which do not now exist, it will then be the duty of the court to observe those restrictions, as it is now its constitutional duty to disregard the supposed restrictions upon its action arising from successive verdicts, which not only find no warrant in the constitution but which will be sought for in vain upon the pages of the statute book.

The effect of the decision of the majority in the case at bar is to take $22,895.00 which now belongs to the defendant, and to award that sum to a plaintiff who has not established his right to it, and whose claim thereto has been denied by the trial justice in setting aside the verdict, as expressed in his rescript: "I am of the opinion, therefore, that the new testimony offered by the plaintiff for the purpose of showing that the middle stem of Exhibit A. is not the stem that was on the apparatus at the time of the accident, in connection with the testimony offered by him on that point on previous trials, fails to establish his case, and still leaves the weight of testimony on this point with the defendant. Motion for new trial will therefore be granted."

In Nolan v. Rhode Island Co., decided January 12, 1910, and reported in 30 R.I. 246, this court unanimously determined as follows: "Moreover, when the verdict of a jury has been disapproved by the judge who presided at the trial, and a motion for a new trial has been granted by him on the ground that the verdict fails to administer substantial justice, such exercise of his power will not be disturbed by this court unless it clearly appears that such conclusion of the trial judge is erroneous." The decision now made is in direct contradiction of the foregoing decision rendered at the present term.

I can not consent thus to belittle and diminish the prerogative of this constitutional tribunal, even if such a renunciation is not wholly inconsistent with the very name of "The Supreme Court" therein conferred. Nor can I consent to the proposition that a constitutional tribunal unquestionably competent to declare, and charged forever, on occasion, with the grave and solemn duty of declaring, the action of the legislative itself as expressed in statutes affecting the property, the liberty, and even the life of every citizen of the State, though duly approved by the executive, to be unconstitutional and wholly null and void whenever and as often as a proper case for such action is presented, is so helplessly bound by the verdict of a petty jury that it can not even examine the record of the case to determine whether such verdict is supported by the evidence and is legally sustainable.

It is indisputable that it greatly concerns the State that there should be an end to litigation; but the supreme concern of the State in that respect is that justice should be done and that injustice should not be done.

As this court stands between the poor man and his oppressor, so it stands between the rich man and his despoiler, to do "equal right to the poor and to the rich." Whether the entry of judgment against the defendant in the sum of $22,895.00, and in favor of this plaintiff, upon a verdict not approved on its merits by this court, and after the trial justice has set the same aside and no error in his action in so doing is found, is or is not a deprivation of property without that "due process of law" which is guaranteed by the constitution of the United States, is a question which must ultimately be determined elsewhere. It is sufficient for this occasion to say that I deem the action taken in the majority opinion as a voluntary renunciation of a duty imposed by the constitution of this State, of which duty not even the General Assembly is competent to relieve the court; and that upon careful examination of the record I am of the opinion that this verdict must be set aside, for the same reasons as heretofore given in the previous decisions of this court, and as are given by the trial justice in his rescript.

It is proper to observe that the first opinion setting aside the verdict in this case, reported in 26 R.I. 180, was rendered by the Appellate Division of the Supreme Court, then composed of Stiness, C.J., and Tillinghast and Douglas, JJ., every one of whom had ceased to be a member of the court before the verdict on the succeeding trial was set aside by the unanimous opinion of the court then composed of other judges than those who had previously considered the case. (See 29 R.I. 276.) Neither should it be overlooked that at the first trial the jury disagreed, and at the second trial the jury found specially, as set forth in the majority opinion, that the exhibit produced in court "includes the identical burner-valve and stem which were operated by the plaintiff at the time of the accident" and that the jury in the trial now under consideration have found specially the direct contrary of the finding of the jury at such second trial in respect of said exhibit. While these facts do not change the legal duty of the court at the present time, they are proper to be considered in determining the weight which should be given to the findings of successive juries in this case.

Seven new witnesses were produced by the plaintiff at this last trial, and it is in evidence that there were nearly two hundred workmen present at the time of the accident.

A new trial should be granted.