*1 circum- guide for fact triers these a valid 569, prescribes “Gen- the court said: opinion stances. At ac- party a who is a credibility witness, erally, the jury; is for the result, its tion interested therefore, and, absolute not an reason, founded is this rule, of contradic- is possible If the evidence and inflexible one. accuracy, truthfulness, or circumstances; if its tion in the case, and upon the facts of doubt open to a reasonable for ground a furnishes the interest of the witness necessary and statements, accept hesitating to upon Where, it. how- pass should just rule that contra- is not of a to the action party the evidence ever, inferences by any legitimate evidence, nor dicted direct probabili- opposed it is evidence, from the no there suspicious, ties; nature, surprising-, nor, denying to it conclusiveness.” reason the decree dismissed, denied and petitioner’s appeal remanded to and the cause is affirmed, from is appealed proceedings. for further family court Brenner, petitioner. Samuel H. for respondent. Appolonia,
Felix A. Gagne d.b.a. Gagne H. vs. Drain Roland E. Eric Service. Gagne d.b.a. Gagne Margaret vs. Roland E. I. Peters Drain Service. 30, 1964. APRIL Joslin, Condon, J., Roberts, JJ. Powers C. Present: *2 trespass J. These are two*actions of on the case Powers, negligence brought by a husband and wife to recover damages personal injuries allegedly resulting wife negligence from the of the defendant employees. and his together superior justice, The cases were tried to*a sitting for the jury, with and resulted verdicts defend- They bills of plaintiffs’ exceptions ant. are before us on the the denial their evidentiary rulings, to certain motions instructions as to certain as well for instructions to for new trials. motions the denial their and to given, defendant, whose residence The evidence establishes of draining in the business adjacent plaintiffs, their connect engaged by plaintiffs to lines. He was sewer city in the on Genest avenue main house with sewer 2 p.m. on or about work was started at Pawtucket. dig- plaintiffs that notice to prior without April day. on that ging would commence was home at that neither undisputed It is also *3 nor operations, commenced employees the time defendant’s Mrs. Pe- at about 4:30. day when finished they p.m. Massachusetts, 12:30 Falmouth, about had left ters evening. Her husband, arrived about 10:30 that and home working arrived day, after all driver, apparently a truck p.m. home about 7 his car he went over garaging that after
He testified where defendant’s fence and observed the excavation his stated, he working. was, It five had been employees feet three to four wide and some or six feet about deep, line to within running from the curb length, in seven feet cor- description substantially a foot of the fence. This the witnesses. by all roborated excavation surrounding to conditions The evidence as Mr. he sharp Peters testified that is, however, dispute. there no earth, that was ladder over but one mound of saw “digger” and that ibackhoe or was opening, the ditch plain- the excavation and parked along the curb between testimony that driveway. wife her also insisted tiffs’ His and was covering no ladder excavation there was as to the location of general testimony with his agreement in the backhoe, placed pile of earth street. but she done actually The defendant testified that work who had left before by employee, brother and another his there were two mounds of 5:30; returned albout he on each side earth, excavation; one there was a placed ladder across the excavation from one running mound other; and that about dusk he obtained two flares lighted from his garage placing which he after one on each mound, apparently at the curb line. by employee,
corroborated Gerald B. Bergeron, except relating placed which flares, position were after left.
Mrs. testified that she arrived home about p.m. 10:30 and the car which a passenger she was past her gate point beyond was driven ato the excavation. She walked along across sidewalk area fence towards walking her gate, between the fence inner edge of seeing excavation. She admitted two flares, the piled earth backhoe, and the denied the excavation was by covered a ladder. It is also her testimony that she looked straight ahead did see A opening. portion of however, was with a testimony, inconsistent written statement attributed signed by her, although to and record- ed investigator for an company. insurance She flatly having denied read the signing statement before it and *4 only that she had quickly day stated read it on the she was to testify. called any event, undisputed that when attempted she
walk between the and fence the excavation her sud- feet slip denly began to into they the hole. Whether or slipped the earth caved in under her is not definite, because she says, quickly.” “Everything happened very clear, It is how- in an ever, that instinctive effort to save herself she flung right and, point her arm at a near over the fence the arm- prevented on pit, impaled picket. was a fence her severely from but falling into excavation lacerated the arm.
It undisputed managed to her- is also that she extricate self repeatedly unavailingly'calling after but assistance. her way made to her home but unable to She was arouse key- door in, having lost the or to let her herself husband, him went she Abandoning efforts to awaken fall. her the home of defendant. next door to then drove a towel and the arm There, wrapped he on im- operated where she was hospital Mrs. Peters also es- record mediately days. remained for six The and or later for skin a so that she returned month tablishes for about a week. For grafting hospitalized again and was work and to-do household several she unable weeks was six months. of her arm for some was the full without use L. under G. by plaintiffs The was called com- of defendant was When their examination §9-17-14. about what noticed counsel defendant asked he pleted, hospital. replied, the ride to the He during Mrs. Peters motion plaintiffs’ probably- had a On “She cocktail —.” The defend- something not observed. answer stricken as he odor of alcohol ant then whether observed an asked slight odor on replied, He “There was Mrs. Peters. per- the answer was plaintiffs’ objection, Over breath.” exceptions were their mitted to and stand pressed -before us. trip of the car Boyd, operator E.
Howard dig- that he saw the “dirt and from testified Falmouth, their whether he not recall location or ger,” but that could Neither mounds of earth. did re- there were two one Mrs. Peters’ tes- seeing but he corroborated any flares, call driving return, past timony departure as to the time after she had excavation, departure his immediate more but one drink alighted significantly, she and, the accident. than hours before two exceptions, numerous plaintiffs pressed necessary we deem it proceedings we take view *5 They and 17. numbered only exceptions to consider justice of con- the trial to admission relate beverage by Mrs. an alcoholic consumption of cerning the accident. prior to her sometime Peters our exception Since as to each considered will re- late to both will cases, we consider such exceptions though as only those the plaintiff us, of wife were but our before de- apply cision will to both cases. plaintiff contends that effect of this testimony prejudice
was to of eyes the jury, relying proposition that nothing than less intoxication may be shown. In support thereof, Waterman, she cites O’Brien v. 91 R. I. 374, quotes therefrom language used in Com- Godfrey, monwealth v. Super. 177 Pa. There, 640. “ court 644: stated 'Whether one may have par- taken of some liquor is not a test of credibility one’s type question, whether answered the affirmative negative, may create the minds of jurors ” most unfavorable inference.’ argues,
The defendant however, assuming Godfrey been adopted have proof law jurisdiction, this of intoxication is necessary only when the drink- ing goes to the issue of credibility. Here, he urges, the testi- mony went to the witness’ credibility, but to the issue of her due care. he regard, this contends that the extent of a plaintiff’s drinking within peculiarly the knowledge justice permit and it for the trial interrogation by the defendant in cross-examination for the establishing purpose such extent in fact.
Assuming deciding, without there however, is merit contention, such a rule no avail this to the instant permitted defendant. After had testify he been to' over an objection subject which is the second exception slight had “a odor her breath,” plain- observed specifically tiff in cross-examination asked whether she evening. objection to drink that anything Over Mrs. I had a cocktail about replied, “Yes, No Peters 6:30.” ex- ruling of the ception taken to the instance. E. Howard Thereafter, Boyd, plaintiff’s called “* ** asked, did Mrs. who was driver, anything *6 106 He was allowed to presence day?” your
to drink that Mrs. had one old objection, again over reply, subject plaintiff’s seven- ruling fashioned. exception. teenth plain foregoing that extent apparent from the
It is to have con by found drinking could not be tiff’s prior hours than one cocktail several sisted of more judgment this was evidence injury. our time of and, force probative to be without an act so remote as The question of things, clearly prejudicial. the nature of knowledge, of common so con matter drinking is, as a social appears to be the established what troversial as to have than intoxication an ele majority nothing less rule Neg Am. negligence. Jur., proof on the issue 38 ment of ligence p. 1019. §322, justice judgment, requires in our that the law
Moreover, between evidence of defendant’s distinction recognize a where, due care the instant negligence and a to anticipate had no reason the situation with plaintiff case, Waterman, O’Brien v. later confronted. See she was which Wujick, R. I. 22. v. I. and Shine 89 R. therefore, question directed to de Assuming, of plaintiff and later asked first instance was fendant drinking, the extent of we are of inquiry as to jus answers, the trial that, light of those opinion interrogation along further permitted tice should line. however, contends, so, further even that, exception to plaintiff have taken the failure of required to an- justice, whereby trial she extent of her drinking, as to the specific swer a became a part in that the evidence thus fatal Pettit Howard jury, citing considered record be Co., R. however, Am. I. 380. Bullough There, Mach. & the evidence which part relied in she objected and this court found record indicated a *7 objection. waiver her
In the
objection
instant case the
to
exception
which no
preserve plaintiff’s
was taken to
rights
to a line of
in-
quiry
objections
to which other similar
were
and ex-
made
ceptions taken.
In Louisville & Nashville R.R. v. Row-
Adm’r,
land’s
Ky.
663, it was stated that where the court
ruled
has
evidence admissible and
exceptions have
been reserved, further objection
the
to
same line of inter-
rogation
not required
question
-to save the
for review.
Allen,
See
Allen
also
(Mo.)
W.2d 709,
60 S.
and Hall v.
Rice,
Thus, in the case plaintiff instant the no at can time be said her to have waived original exception or to par ticipated inway permitting objectionable the testi mony to become a the record. In part light the of the prejudice we feel to have engendered been the testimony opinion we question, plaintiff’s are ex ceptions upon relied should be sustained. plaintiff’s
In each second, case third and seventeenth exceptions are sustained and each case is remitted to the superior court for a new trial. I J., concurring. concur in the
Roberts, conclusion my court this case desire to stress view toas scope thereof. The raised is whether limited issue evidence consumption beverage alcoholic as distinguished from the issue of the intoxication is admissible plaintiff’s contributory negligence. confronted the Waterman, R. I. wherein O’Brien v. justice trial erred in exclud- contended noted he had physician
ing testimony attending of an treating breath while plaintiff’s an odor of alcohol however, did not court, pass him the accident. This after held noting if such were upon question, exclusion in the circumstances was admissible, be other record barren of evidence prejudicial error, the failure exercise reasonable probative case defendant contend- safety. own care error to admit such evidence on the it was not ing exercise of care plaintiff was due whether the issue of injury. time intoxicated, evi- made that claim is No *8 of the purpose establishing for the only offered dence beverage for consumption pro- of alcoholic whatever some plaintiff’s due might on issue of force it bative it not safety. words, In is a case in for her own other care alleged negligence as an act of intoxication has been which plaintiff resulted a natural and to the injury from which R.R., Maine Small v. Boston & 85 probable consequence. in a which evidence of N. Neither is case H. 330. offered intoxication as a con- to establish liquor use of on of by jury question be considered dition to incapable of reason- exercising probability Palmer, safety. Dokus v. Conn. own able care 247. to the admissibility consumption of evidence as purpose for the establish- beverage offered
an alcoholic ordinarily by the nature will be controlled intoxication ing Where intoxication pleadings. issue raised that it constituted an an- by allegation into issue put is upon liability predi- which negligence act of tecedent indicating improbability a condition it created cated care, of the con- due such evidence capacity exercise to a beverage may proba- have such of an alcoholic sumption admission into evi- as warrant on that issue force tive n - dence We are not aware this in- court ever decided that negligence toxication if per se or that, proved, it is evi- dence to be considered by question on of the probability incapacity exercise reasonable care safety. Co., one’s own In Vizacchero Rhode Island R. I. this held 1904, decided that the plaintiff had negligence part failed to establish transportation company. however, It went on, say by way “If dicta at 399: in- impaired testate ability to take care of himself by getting intoxicated, that fact in no wise affects the case. Intoxication does not relieve a man from degree of care required of sober man a the same circumstances.” other has words, this court indicated the issue of contributory negligence intoxication will excuse one obligation from the to exercise the required care of a sober man in circumstances; the same or similar is to say, always that reasonably the test is prudent man without regard of sobriety. The extent to which intoxication immaterial on makes of negli- issue gence, appropriate pleading, absent we do not decide. might Whatever be the rule cases where intoxication put the pleadings, however, issue the question with which we confronted here whether are testimony as to *9 the of an alcoholic consumption beverage should ever be allowed into evidence where intoxication is not in issue. It jurisdictions would in appear testimony that merely consumption the establishes of alcoholic bever- age be is evidence that should submitted to a jury for con- along with other sideration evidence the question of Pearson, negligence. Super. Roether v. N. 36 J. I 465. can- accept testimony view that is the merely admissible of consumption to establish the alcohol as distinguished It my opinion from intoxication. is proof of that the better Dye, 141. rule stated Fisher v. 386 Pa. that case proof “while of the said intoxication an auto- driving reckless or careless of relevant where drinking mere in- issue, matter at the fact of mobile prejudi- toxicating admissible, unfairly liquor is not ** *.” cial into ground sound for the evi- If there be admission consumption of testimony concerning of the mere dence it probative be that is of such .beverage, an alcoholic must to justify its admis- force the issue of reasonable care despite tendency prejudice notorious create sion prejudicial potential jurors. Speaking minds of Donovan, in Critzer the court said evidence, such directly to raise in testimony “Such tends Pa. 385: in- jurors issue, minds another —whether evidence, of other should toxicated, which, the absence — into the determination of the case.” not have entered the conclusion that admission inescapable I find clearly is not im- when intoxication issue testimony such into of intoxication the deliberations ports it opens thereof Not the least evils jury. half-truth injection of the distorted the door to the judicial process usually with the inevitable into the fact liability. determination as to prejudiced consequence admission I concur For these reasons concerning plaintiff's consumption of an injury re- day of constituted beverage on alcoholic error. versible concurring opinion of Mr. Jus-
Joslin, in the concurs J., tice Roberts. Gagnon, plaintiffs. R. Goldberg, Ronald R.
William Rice, Keenan, Keenan, John T. Bulman & Boss, Conlan, for defendant.