Sclama v. Malo
Sclama v. Malo
Opinion of the Court
These four civil actions for negligence were consolidated for trial before a superior court justice sitting with a jury which returned verdicts for the defendants in all cases. After the entry of judgments in accordance with
Shortly after midnight on the morning of November 11, 1962, Benedetto Pazienza, hereinafter referred to as plaintiff, was a passenger in a station wagon traveling southerly along Elmwood avenue in the city of Cranston, a public highway which runs through said city in a generally north and south direction. It is a four-lane highway, divided into two lanes for traffic traveling in each direction. The station wagon was in the second lane provided for southbound traffic.
Directly behind the station wagon, also traveling southerly but in the first lane, was a car owned by Albert V. Malo and being operated by his daughter, hereinafter called Joyce. Both vehicles were traveling at about the same speed, 25 to 30 miles per hour. The vehicles were two car lengths apart when the operator of the station wagon decelerated his speed by applying his brakes, and observing this, defendant did likewise. This happened at a point approximately opposite a restaurant on the westerly side of Elmwood avenue, which restaurant was the intended destination of both plaintiff and the operator of the station wagon in which the former was a passenger. When abreast of said restaurant, the operator of the station wagon made a right-hand turn, intending to cross the first lane in which Joyce was operating and enter the parking lot of the restaurant. As the station wagon turned and entered the right-hand lane, it was struck by the car which Joyce was operating.
There is no sufficient dispute regarding any of the facts as thus recited. However, the testimony is in sharp con
In any event, the trial justice charged the jury that for plaintiff to recover he must prove by a fair preponderance of the evidence that Joyce was negligent; that this negligence was the proximate cause of the accident; and that plaintiff was himself in the exercise of due care. On this latter point he also instructed the jury that the negligence of the station wagon operator could not be imputed to plaintiff and, in effect, instructed them that there was no evidence of plaintiff’s contributory negligence. In the view we take of the cases, however, the correctness of this latter instruction is not in issue.
Further, the trial justice instructed the jury that there were certain rules of the road which should be taken into consideration in weighing the evidence bearing on the issue of Joyce’s negligence. Since our decision turns on the failure of the trial justice to give this court the benefit of his findings in the exercise of his independent judgment, the nature of which is exhaustively reviewed in Barbato v. Epstein, 97 R. I. 191, 196 A.2d 836 (1964), a consideration of his instructions regarding the applicable rules of the road is unnecessary even though the applicability of one such rule was properly raised for our determination.
With regard to this issue, the trial justice justified his decision to grant new trials by observing, “Based upon the evidence in the case, the Court is of the opinion that both operators (Sclama and Miss Malo) were negligent. Miss Malo was negligent either in attempting to pass the Sclama vehicle on the right and/or in failing to keep a proper distance between her car and the station wagon ahead of her.”
It is defendants’ contention that this is a conclusion which is nothing more than a substitution of the trial justice’s judgment for that of the jury, based on conflicting evidence which was not independently passed on for credibility and weight. They urge that, this being so, his decision is not entitled to the persuasive force that it would be otherwise accorded, citing Meehan v. Petroleum Heat & Power Co., 76 R. I. 178, 68 A.2d 77 (1949), and Anderson v. Johnson, 59 R. I. 241, 195 Atl. 240 (1937).
In relying on the cited cases, it is defendants’ position that this court should set aside the trial justice’s decision on the new trial motions and permit the jury’s verdicts to stand, unless from our independent examination of the record we find that the evidence strongly preponderates against the verdicts. The trial justice’s rescript does not demonstrate that in the exercise of his independent judgment he passed on credibility and weighed the evidence as required; hence, we think defendants’ position to be well taken. Rich v. Rich, 94 R. I. 220, 179 A.2d 498 (1962).
Joyce’s testimony was that such was the situation with which she was confronted and for which the plaintiff sues. The jury had a right to believe her testimony and the trial justice does not tell us that in his judgment she was not worthy of belief. Nothing appearing in the record which strongly preponderates against verdicts predicated on a finding that the jury had a right to make, nor anything appearing which suggests that the verdicts were influenced by passion or prejudice, we hold that it was error to disturb them and we correspondingly direct their reinstatement. Hovas v. Cirigliano, 70 R. I. 227, 38 A.2d 298 (1944).
In each case the appeal is sustained, and the order appealed from is reversed.
Reference
- Full Case Name
- Gaetano P. Sclama v. Albert V. Malo Benedetto Pazienza v. Albert V. Malo Benedetto Pazienza v. Joyce Elaine Malo Gaetano P. Sclama v. Joyce Elaine Malo
- Cited By
- 1 case
- Status
- Published