Souza v. United Electric Railways Co.

*413 Rathbun, J. This is an action of trespass on the case for negligence to recover for personal injuries caused by a collision between a street car of the defendant and a coal team driven by the plaintiff. The trial in the Superior Court resulted in a verdict for the plaintiff for $17,500 and the case is before us on the defendant’s exceptions as follows: To the refusal to instruct the jury as requested; to the refusal to direct a verdict for the defendant and to the denial of defendant’s motion for a new trial. The collision occurred at the corner of Warren avenue and Abby street, in East Providence, after dark in the evening of October 29, 1924. Warren avenue is a wide highway running east and west with trolley tracks at the extreme edge of each side. Abby street at the time of the accident was a rough ungraded street, running at right angles with and to the north from Warren avenue, and served as a means of ingress and egress for one or two houses. The easterly side of Abby street is 1,000 feet west of Moore’s Corners, where Pawtucket avenue crosses Warren avenue at approximately right angles. The plaintiff, after delivering a load of coal on Abby street, intended to cross the northerly line of trolley tracks and proceed west *414 on Warren avenue. While attempting to cross said tracks, the plaintiff and his helper were seated on the seat of the coal wagon, which closely resembled an ordinary farm wagon. The team, while crossing the track, was struck on the left side by a street car which was coming from the east. When the car stopped, the plaintiff and a part of each horse were under the front end of the car; the body of the wagon was upon the bank at the north side of the car tracks and was close to the right side of the car. The plaintiff contends that he stopped the horses when they were 15 or 20 feet north of the railway track and looked to his left towards Moore’s Corners; that, seeing no car, he started the horses and looked again to his left, when the horses reached the first rail, and saw no car; that the off horse stumbled on the second rail and fell to his knees; that plaintiff pulled on the reins, the horse regained his feet and the team proceeded until all of the wagon wheels except the right rear wheel had passed over the second rail when the left rear corner of the wagon was struck by the electric car. Apparently neither the plaintiff nor his helper saw the car until the collision, which sounded to them like an explosion. The defendant contends that the car, after turning at Moore’s Corners at approximately a right angle from Pawtucket avenue on to Warren avenue, proceeded west a short distance and stopped to take on a passenger at a white pole which was 800 feet east of the east side of Abby street; that the car proceeded at about 20 or 25 miles per hour until it was within a short distance from Abby street when the motorman saw the horses coming at a trot close to, and about to go upon, the track; that the motorman stopped the car as quickly as possible and that the car hit the team between the horses and the left front end of the wagon. As bearing upon the question of negligence and contributory negligence, the parties made considerable issue of the question whether the wagon was struck at the left front corner or left rear corner. *415 The plaintiff contends that he drove the horses diagonally across the track and that at the time of the collision all of the wagon except the right rear wheel and right rear corner, had passed over the track. He does not attempt to rely upon the doctrine of the last clear chance — which was not applicable — -but insists that he was entirely free from negligence by reason of the fact that immediately before driving upon the car track he stopped the horses and, as he contends, looked toward Moore’s Corners and saw that no car was within sight. To substantiate his theory, he endeavors to show that the team was not struck until both horses and the whole of the wagon, except the right rear wheel and right rear corner, had passed over the track. He appreciates the fact that he would be deemed guilty of negligence if it should appear that the horses were struck almost as soon as they entered upon the track. The case was submitted to the jury on the theory that the plaintiff was guilty of contributory negligence if the street car had passed Moore’s Corners when the plaintiff drove upon the track. To support the plaintiff’s contention that the car had not passed said corner and was not within sight when he drove upon the track, there is nothing except the testimony of the plaintiff and his helper that they looked and saw no car. We have repeatedly stated that it avails a party nothing to say that he looked and saw nothing when if he had looked he would have seen that which was plainly visible. Beerman v. Union R. R. Co., 24 R. I. 275. Had the plaintiff looked before driving upon the track, he would have had an unobstructed view of said track down to said Corners, 1,000 feet away. Three other witnesses for the plaintiff testified that while walking on Warren avenue in the direction of, and in close proximity to, Abby street they saw the car only a short distance away from said street but saw no team until the instant of the collision. An electric light was burning at the corner of said street and Warren avenue. It is admitted *416 that the team carried a lighted lantern and that the headlight on the car, as well as the lights within, was lighted. There was nothing on the street to interfere with the view of said witnesses. It is not contended that the horse in stumbling fell to the ground or became entangled in the harness. He fell to his front knees .and apparently regained his footing promptly. The fact that neither the plaintiff nor his helper saw the car until after the collision sheds considerable light on the situation. If they looked towards the corner immediately before driving upon the track and then drove slowly upon the track, it is inconceivable that the brightly lighted electric car proceeded toward them without being observed by them for a distance of 1,000 feet while they were upon and in the act of crossing the track. The testimony of the plaintiff's own witnesses seems to preponderate strongly against him. However, the physical facts clearly demonstrate that the entire team — except the right rear wheel and right rear corner of the wagon — had not passed over the track, as the plaintiff contends, before the collision. Had the team been in such a position, it would have been pushed to the left and the body of the wagon would have been found on Warren avenue south of the north car track instead of on the bank at the right hand side of the car. If the horses were across the track and the wagon entirely across, except the right rear wheel and corner, the collision would not have drawn the horses back on to the track and under the front end of the car. In Whalen v. Dunbar, 44 R. I. 136, this court, in sustaining an exception to the refusal to direct a verdict for the defendant said: “When testimony is opposed to established physical facts the testimony must yield to such facts. In Dodds v. Omaha & C. B. St. R. Co., 178 N. W. (Neb.) 258, the court said: 'The rule that a verdict will not be disturbed when there is evidence tending to support it does not apply where the verdict is opposed to the undisputed physical facts in the case, or is in flat contradiction of rec *417 ognized physical laws, and where the testimony presented, taken as a whole, is capable of no reasonable inference of such a state of facts as would allow the plaintiff to recover’.” The same rule is stated in Sec. 2714 (1703) of Elliot on Railroads. The special findings in accordance with the plaintiff’s claim add nothing to the verdict. The presumption that a jury has intelligently and conscientiously performed their duty does not exist when the physical facts clearly demonstrate that the facts as found by the jury were impossible. 29 Cyc. 836; 46 C. J. 192. A minority of the members of the court are of the opinion that the physical facts conclusively show that the alleged facts, which were solely relied upon by the plaintiff to prove due care on his part, did not exist; that the plaintiff, therefore, has no evidence whatever to prove that he was in the exercise of due care; and that, as the doctrine of the last clear chance was not applicable, a verdict should have been directed for the defendant. However, a majority of the court have agreed that the case should be sent back for a new trial. The exception to the refusal to direct a verdict for the defendant is overruled and the exception to the refusal to grant defendant’s motion for a new trial is sustained.' When counsel for the plaintiff concluded his argument to the jury, counsel for the defendant requested instructions as follows: “(1) There is no evidence in this case that the defendant’s version of the accident was a ‘frame-up’ and argument to that effect was improper and should be disregarded. (2) There is no testimony in this case that the defendant has failed to produce witnesses that it could have obtained "and any argument to the contrary was improper and should be disregarded.” The request was refused and defendant’s exception noted. We cannot pass upon this exception because, the argument not having been reported, the record as to the remarks complained of is incomplete. If such statements *418 were made to the jury without warrant, counsel for defendant should have moved that the case be taken from the jury and passed or, if he did not wish to do this, he should have had the offensive remarks placed upon the record before the case came to this court for hearing on the bill of exceptions. The case is remitted to the Superior Court for a new trial.