Peters v. United Electric Railways Co. ( 1933 )

I dissent from the portion of the opinion which states: "We find no evidence showing improper operation (of the bus) in any particular" and which sustains defendant's exception to the denial of its motion for a directed verdict.

The trial justice instructed the jury that the mere skidding of the bus was not negligence in itself, and left it for them to determine from the facts and circumstances in evidence whether the skidding was caused by the negligent operation of the bus. This statement of the law is in accord with the law as stated in this opinion. In the recent case of Spain v. Oikemus,278 Mass. 544, the court said: "The mere skidding of an automobile is not evidence of the negligence of its driver. But skidding may occur in connection with other acts of omission and commission in such circumstances as to support a finding of negligence."

Are there any facts and circumstances in evidence in this case from which the jury could reasonably find that the plaintiff was struck by the bus on account of its negligent operation? The jury found there was such evidence and the trial justice has approved their verdict in a carefully prepared rescript in which he said: "The jury apparently did not believe the defendant's (the bus operator's) explanation and was amply justified in doing so."

Some of the facts in evidence tending to support the verdict are as follows: Plaintiff and her sister were standing on the sidewalk close to the bus stop waiting for the bus. They testified that they saw it coming fast down-grade near the center of the road until, when it was about opposite them, the driver turned it toward the sidewalk. Plaintiff testified that the turn was "sharp" and her sister that it was "swift". The driver testified that he drove the bus toward the right-hand curb very slowly. Mr. Larson testified that he was in the rear seat on the right-hand side of the bus; that he suddenly felt the bus slow down and start to slide into the right-hand curbing; that the rear of the bus hit the plaintiff and that, just before the accident, the bus seemed to be going about 25 miles an hour. Mr. Larson's companion, Freeberg, testified that the bus was going 20 to 25 miles an hour; that he noticed a sudden movement by the driver and that the rear of the bus skidded toward the curbing. These two witnesses made statements to defendant's agent about six months after the accident. In Larson's statement it appears that he said the bus was traveling 15 to 20 miles an hour. In Freeberg's statement he said the speed of the bus had been reduced considerably before the skidding occurred. The statements made by these witnesses are not conclusive but are to be considered in appraising their testimony as to the speed of the bus.

In the opinion it is said: "One witness testified that the bus skidded ``its length'. This statement is ambiguous and must be taken to mean that, while the bus was skidding, it moved forward the distance of its length." The witness Larson was asked by defendant's attorney on cross-examination: "How soon did the bus stop after it began to skid? What distance did it cover? A. Well, I should say it slid pretty near the length of the bus before it hit Miss Peters, then he went down near the corner so I can't say how many feet, because I don't know." If there is any ambiguity in this answer, its meaning is a question for the jury and not for this court.

The width and down-grade of the highway, its icy and slippery condition, the speed of the bus, the sudden application of its brakes, the sharpness of its turn toward the sidewalk and the distance it skidded were all circumstances to be considered by the jury in determining whether the plaintiff was injured by the negligent operation of the bus.

On a motion to direct a verdict this court has repeatedly held that, if there is any evidence to support a plaintiff's right of action, the case must be submitted to the jury and that all reasonable inferences deducible from the evidence which are favorable to plaintiff must be considered. The Morris Plan Co. v. Firemen's Fund Ins. Co., 49 R.I. 159; Rooney v. U.E. Rys.Co., 47 R.I. 478; Jacobs v. U.E. Rys. Co., 46 R.I. 230. Applying this rule to the facts in evidence it clearly appears to me that the trial justice was required to submit the case to the jury and that he did not err in denying defendant's motion for a directed verdict.

HAHN, J., concurs in the opinion of SWEENEY, J.