Murphy v. Buckley ( 1931 )

CAPOTO STO, J.

In an action for negligence the jury returned a verdict for tlie defendant. The plaintiff moves for a new trial and presents an affidavit which he offers as newly discovered evidence.

For plaintiff: E. F. and R. P. Reagan. For defendant: William A. Gunning.

The accident involved a collision between two automobiles at the intersection of Hope Street and Doyle Avenue in the City of Providence about 5 P. M. on October 2S, 1929. The plaintiff was proceeding northerly on Hope Street and the defendant was moving easterly on Doyle Avenue. The automobile of .the defendant did an aerobatic act by turning over at least twice and landed on its wheels, facing east, in close proximity to a tree some considerable distance away.

It may be that the defendant did not use the care that she should. Assuming that she did not, the plaintiff is still not entitled to recover, for both the oral and real testimony show that the plaintiff took little precautions for his own safety. The true explanation for his incautious conduct may be found in that false conception of the right of way rule which has landed, and undoubtedly will continue to land, so many in the hospitals and cemeteries. Simply because he was coming from another person’s right, the plaintiff assumed that he was privileged to proceed across an intersection of two main streets irrespective of his own speed or existing conditions of traffic.

The affidavit of newly discovered evidence does not assist the plaintiff. In the first place, it offers evidence which the plaintiff had in his potential control at the time of trial and might have produced had he seen fit so to do. In the second place, giving it every consideration to which it might be entitled, it is still insufficient to affect the real issue in the case. The plaintiff must credit his misfortune to experience and be more careful in the future in crossing intersecting highways even though he may have the so-called right of way.

Motion for new trial denied.