Pepe v. Hunt

O’CONNELL, J.

This case comes before the Court on plaintiff’s motion for a new trial after a jury verdict for the defendant.

The defendant, a member of the Providence police force, was driving a police scout car on Branch Avenue near Commodore Street on June 29, 1932, at about 12:20 P. M. The plaintiff, a child of about six and one-half years of age, had just left her home on the northerly side of Branch Avenue and was crossing to the southerly side of Branch Avenue, near its intersection with Commodore Street. Before she had reached the opposite side of the street, she was struck and injured by the automobile operated by the defendant, from which injuries she has now practically, if not fully, recovered.

The evidence is conflicting as to just how the accident, happened, the plaintiff claiming that she looked up and down the street before crossing, saw no automobile approaching and was struck before she reached the further side. The defendant claimed that the plaintiff came out from between two parked cars on the northerly side of Branch Avenue; that she was about five feet from his car when he first saw her; that he did everything he could to avert the accident and that the accident was unavoidable.

The Court instructed the jury fully as to the duty of the defendant toward a child of tender years, and as to the degree of care to be exercised by such child under the circumstances of the instant case. The jury evidently decided either that the defendant was not negligent or that the plaintiff was guilty of contributory negligence, or both. There was no special finding and since the Court cannot read the jury’s mind, the question for determination is whether one or both of these findings upon the question of liability, are justified by the evidence.

The Court is of the opinion that, by a preponderance of the testimony, the defendant was guilty of negligence. But on the question of contributory negligence, the Court is of the opinion that it was a question of fact upon which the jury might well have come to the conclusion that the' conduct of the plaintiff was such as to warrant a finding that she was guilty of contributory negligence and that she had not sustained the burden of proof imposed upon her by law, to prove, by a fair preponderance of the evidence, that she was in the exercise of due care.

The Court, therefore, sees no valid reason to disturb the verdict of the jury and the plaintiff’s motion for a new trial is hereby denied and dismissed.

For plaintiff: Pettine, Godfrey & Cambio. For defendant: Yoigt, Wright & Munroe.