Souza v. United Electric Railways Co.

I am obliged to dissent from the foregoing opinion because I am convinced that the trial justice did not err when he denied defendant's motion for a new trial.

This case has been before this court twice: 49 R.I. 430;51 R.I. 124. In the first opinion we held that plaintiff's evidence was such that a jury might find that the motorman was guilty of negligence and that the trial justice erred in directing a verdict for the defendant. In the second opinion we said: "As bearing upon the question of negligence and contributory negligence, the parties made considerable of an issue of the question whether the wagon was struck at the left front corner or left rear corner." We also said: "The jury could determine as well as an expert the point of contact" between the car and the wagon and held that the court erred in permitting an expert to testify that, in his opinion, the wagon was struck on the left rear portion. 51 R.I. 124, 128.

The issue as to where the car struck the wagon was again presented to the jury at the last trial. The motorman testified that his car struck between the horses and the front of the wagon. Plaintiff and the man riding with him each testified that the wagon was struck from behind. Plaintiff testified that his horses walked towards the track; that when about 25 feet from it, he stopped and looked to his left and saw no car; that he then started to cross the track; that the off (right-hand) horse stumbled and floundered for about a minute, regained its footing and continued across the track and was parallel with it when the car struck the wagon. The evidence shows that the horses did not cross the track at a right angle but crossed obliquely to the right in the same direction in which the car was traveling. The motorman testified that after the collision one of the horses was beneath the front of his car and the other horse was standing in the track. Several witnesses were called to support the contentions of the plaintiff.

Defendant states in its brief that Mary E. Bennett "is the most important witness on liability in this case." Miss Bennett was called as a witness by the plaintiff. She testified that just before the collision she had been walking in a westerly direction on Warren avenue until she reached Stoddard's driveway (which is a short distance east of Abby street) when her attention was attracted by "the rumbling of a team; . . . it sounded like a heavy wagon going over the rails; . . . then I looked up and saw an electric car coming around Moore's Corners." On cross-examination she was asked: "I am asking now, when you heard this rumbling, this sound you speak of, had you seen the electric car before that?" Her answer was "No." The testimony of this witness justifies the verdict.

As a result of the collision the plaintiff was found under the car with his right leg bent under his body and his foot near his right armpit; on top of the lower portion of his body was the haunch of the off horse. It was necessary to raise the front of the car before the horse and the plaintiff could be removed. Plaintiff's pelvic bones and vertebra were fractured. He received painful surgical and hospital treatment for several months.

The trial justice instructed the jury in the law applicable to issues raised by the evidence. No exceptions were taken by the defendant to the instructions of the trial justice on the questions of liability and damage. He instructed the jury that the plaintiff must prove by a fair preponderance of the evidence that at the time he was injured he was in the exercise of due care and that his injuries were caused by the negligence of defendant's motorman in the operation of its trolley car.

The trial justice read and granted ten requests to charge presented by defendant. Two of these requests were as follows: "The plaintiff's claim is that when the horses he was driving stepped over the first rail of the car track the electric car had not started to come around Moore's Corners and therefore was not in a position to be seen by him and in order to recover the plaintiff must prove this to be a fact by a fair preponderance of the credible testimony. . . . The defendant claims that the electric car had come around Moore's Corners and was a comparatively short distance from Abby street when the horses were about to be driven on the car track and if you find this to be the fact the plaintiff cannot recover."

At defendant's request the trial justice instructed the jury to answer the following special findings: "Had the electric car started to turn the corner at Moore's Corners before the horses, driven by the plaintiff, stepped across the first rail of the car track?" "Had both the horses and all the wagon except the rear right wheel and right rear corner crossed both car rails when the collision occurred?" The jury answered the first finding "No" and the second one "Yes," and returned a general verdict that the defendant was guilty as alleged in the declaration.

When denying defendant's motion for a new trial the trial justice wrote that he had reached his conclusion uninfluenced by the result of any of the former trials. He said that after a careful consideration of the entire evidence he believed that the jury was fully warranted and justified in reaching a verdict for the plaintiff and that the damages awarded were merely moderate and clearly not excessive for the severe and permanent injuries received by the plaintiff.

I have read all the testimony and find it is sufficient to support the verdict and the special findings and consequently find no error in the decision of the trial justice denying defendant's motion for a new trial. It does not appear to me that the testimony presented by the plaintiff is opposed to any "established physical facts." It is undisputed that the wagon was moved some distance after it was struck by the car. It is impossible to tell exactly where the wagon was just before the collision. This was a question for the jury. In our former opinion we said: "A jury could determine as well as an expert the point of contact" between the car and the wagon. The rule announced in Wilcox v. R.I. Co., 29 R.I. 292, and so often followed, should be applied in this case. See also Spiegel v.Grande, 45 R.I. 437.

The doctrine of concurring verdicts is recognized in this State. Carr v. American Locomotive Co., 31 R.I. 234; Joslin v. Rhodes, 48 R.I. 123. In Bevan v. Comstock, 48 R.I. 285, this court applied this rule, although the trial justice set the last verdict aside after three successive verdicts for the plaintiff.

Three juries have found the defendant guilty of negligence and two of the trial judges have said the verdicts were supported by the preponderance of the evidence. In view of this record and the answers to the special findings, it is my opinion that this litigation should cease and plaintiff receive the damages awarded by the last jury.

STEARNS, C.J., concurs in the opinion of SWEENEY. J.

RATHBUN, MURDOCK HAHN concur.

STEARNS, C.J., and SWEENEY, J., dissent.