Barlik v. United Elec. Rys. Co. , 60 R.I. 285 ( 1938 )

Since the opinion of the court in this case was filed, the plaintiff has, by leave of court, filed a motion for reargument. The reasons advanced in support of such motion are that the opinion is contrary to the law of the case and that this court has not given effect to the trial justice's decision approving the jury's verdict as required in such a case by the decisions of this court. In other words, if we understand the plaintiff, he contends that this court has disregarded both the "law of the case" and the law of the state in the opinion which we recently filed.

This is so serious a charge of failure to appreciate the true nature of the issues before us on appeal and the applicability of well-recognized principles that we have reexamined the record of the case, with even more than our usual care. We have been unable to find anything therein which justifies the contentions so trenchantly set forth by counsel in plaintiff's motion. It would serve no useful purpose to restate in full the reasons for our decision, as these have been given in the opinion with reasonable clarity. If only excerpts of the opinion are relied upon for a proper understanding of the reasons underlying the decision, we are not surprised if entirely erroneous impressions are created.

Our position, however, may be briefly restated as follows. We did not ignore the law of the case. On the contrary, from our examination and consideration of the evidence in the record before us, we found that it greatly preponderated against the existence of the facts, from which the trial justice told the jury, in instructions not excepted to by the defendant, that they should find that the plaintiff became a passenger. Neither were we unmindful of the law of this state binding upon this court with reference to the granting of new trials, particularly as that law has been recently enunciated in the cases cited by counsel in their motion. Peters v. UnitedElectric Rys. Co., 57 R.I. 311; Young v. Young, 56 R.I. 401;Duffy v. United Electric Rys. Co., 56 R.I. 450; Gallo v.Simpson Spring Co., 55 R.I. 410.

Our opinion, if rightly interpreted, is not inconsistent with the principles of those cases. From our examination and consideration of the evidence, we found that it greatly preponderated against the verdict and we were of the opinion that the trial justice was clearly wrong in approving such verdict. Under the well-established law of this state, it was the duty of this court in the premises to thus examine the transcript of evidence and to declare the error, if any, of the trial justice and to correct it by granting the defendant a new trial.

Motion denied.