Pullan v. Townshend

170 A. 92, 54 R.I. 118, 1934 R.I. LEXIS 19

• Court: Supreme Court of Rhode Island
• Decided: January 19, 1934
• Status: Published

Opinions

Hahn, J.

These are actions of trespass on the case for negligence brought by a husband and wife to recover for personal injuries and loss caused by the negligent operation of defendant’s automobile. The cases were tried together in the Superior Court and at the close of the testimony the trial justice granted the defendant’s motion for the direction of a verdict in each case. The cases are here on plaintiffs’ exceptions to this ruling.

The accident which forms the basis of these actions occurred east of Nasonville, Rhode Island, on the Victory Highway, so-called. This is a new rock and tar-surfaced highway twenty-five feet wide, with a three-foot shoulder on each side and a white traffic line along its center. Nearing the place of the accident from the west the road curves slightly northward and somewhat down-grade. At the time of the accident the surface of the road was wet, as rain had been falling for some time.

Plaintiff Pullan, with his wife sitting beside him, was driving his Ford coach westerly at a speed estimated by him to be twenty-five miles per hour. Both plaintiffs testified that they observed defendant’s automobile for the first time when it was about fifty feet away and on its right side of the road. Mrs. Pulían testified that immediately thereafter she called her husband’s attention to water dripping upon her from the hood and that she did not again observe defendant’s automobile or see the collision occur. She and her husband both testified that, as they had previously discussed this leakage, Mr. Pulían did not look down but continued to watch the road.

Defendant contends that a logical explanation of the collision is that through the above conversation Mr. Pullan’s attention was withdrawn from the road and he thus lost control of his automobile. Defendant testified that, accompanied by two passengers, he was driving his Franklin sedan easterly at about thirty miles per hour and first saw the other automobile about 300 feet away coming around the curve on defendant’s right side of the road, but that shortly thereafter it returned to its right side of the road. He stated that during the time in question he was not conversing with anyone but was watching the road.

According to their testimony, neither driver saw anything in the operation of the other vehicle immediately before the collision to suggest that such an accident would happen, and each denied that before the collision his automobile skidded.

The accident occurred when the left front wheel of the Ford collided with and partially shattered the left rear wheel of the Franklin. Apparently the hub, or what remained of the wheel of the Franklin, made a mark in the road beginning at the white center line and ending five feet over on plaintiffs’ right side of the road. Glass and rusty water were found about two feet over the white line on defendant’s right side of the road. It appeared in testimony that after the impact the Ford went straight ahead for about twenty-four feet and the Franklin veered to a place about twenty feet ahead and five feet over on plaintiffs’ right side of the highway. Positions of the two vehicles were noted by a state trooper, and later other measurements in the vicinity of the accident were taken.

The two passengers in defendant’s automobile corroborated his testimony as to his operation thereof, but testified that Mr. Pullan’s automobile was “coming rather fast ” — according to one of them, about thirty miles per hour —and that it lurched twice over the center line upon defendant’s side of the road. They did not see the collision occur.

The only other witnesses to the accident were Charles and James Murphy. Charles testified that he observed the collision from the doorway of his diner, about 257 feet to the east. At the trial he contradicted a statement which he had previously signed and concurred in the testimony of his brother James, who at the time of the collision was waiting on a customer at a filling station east of the diner, to the effect that the Ford passed him going slowly, was always two feet to its right of the white fine and did not sway or skid at all; that the Franklin, coming from the opposite direction, was going fast, about two feet to its left over the white line; that defendant suddenly applied his brakes and the Franklin “slid” into the Ford.

This court has repeatedly held that when the testimony is conflicting the question of the credibility of witnesses and the preponderance of evidence must be determined by a jury, unless as a matter of law the plaintiff was guilty of contributory negligence or unless it can be said that there was no legal evidence which would justify a verdict for plaintiff. Young v. Thornley, 166 Atl. 690; Nahabedian v. United Electric Railways Co., 50 R. I. 455; Riley v. Tsagarakis, 50 R. I. 62; Gilbane v. Lent, 41 R. I. 462; Reddington v. Getchell, 40 R. I. 463; Carr v. American Locomotive Co., 31 R. I. 234.

The defendant, in urging that his motion for directed verdicts was properly granted, relies inter alia upon the rule set forth in Whalen v. Dunbar, 44 R. I. 136, to the effect that testimony inconsistent with uncontroverted physical facts is of no evidentiary value and should be disregarded.

In the instant cases, if the physical facts in evidence render it unlikely that the accident happened as testified to by the Murphy brothers, this would affect the weight of the evidence; but, as the record discloses no physical facts which definitely indicate that the accident could not have happened as testified to by them, all the evidence should be weighed and determined by a jury. The ruling of the trial justice granting defendant’s motion for directed verdicts was error.

Plaintiffs’ exceptions are sustained and each case is remitted to the Superior Court for a new trial.