117 R.I. 565 369 A.2d 249

369 A.2d 249.

Robert L. Armstrong vs. Richard W. Polaski.

FEBRUARY 14, 1977.

Present: Bevilacqua, C.J., Paolino, Joslin, Kelleher and Doris, JJ.

*566Joslin, J.

This is a civil action to recover damages for injuries allegedly sustained as the result of a collision between a motorcycle operated by the plaintiff and an automobile owned and operated by the defendant. It was tried to a jury and resulted in a verdict and judgment for the defendant. The case then came here on the plaintiff’s appeal, and we deferred consideration of the merits in order to afford the defendant an opportunity to file an additional brief. Armstrong v. Polaski, 116 R.I. 661, 360 A.2d 558 (1976). He has now availed himself of that opportunity. The only errors assigned are to the trial justice’s refusal to honor two requests to charge the jury.

The material facts may be briefly stated. On July 3, 1971, plaintiff, a Warwick police officer then on motorr cycle patrol, and defendant were each proceeding in a westerly direction on (Strawberry Field Road in the city of Warwick. The plaintiff was traveling at between 25 and 30 miles an hour and defendant was ahead of him and proceeding at a lesser speed. As they neared Ormsby Street, which intersects Strawberry Field Road on the north or to their right, the gap between their two vehicles narrowed to several automobile lengths. At that point, according to plaintiff, defendant first veered to the right as if to turn onto Ormsby Street, then suddenly headed left as if intending to make a left turn onto Hanover *567Street, which enters Strawberry Field Road from the south. In neither instance did he signal his intention to turn except by activating his brake lights. The plaintiff further testified that he had no idea what defendant would do next and that consequently, in the hope of avoiding a collision, he applied his own brakes; but his efforts were unavailing, and his cycle skidded and impacted with defendant’s automobile.

The defendant’s version of the occurrence differed. He denied veering right, said that he intended to turn left onto Hanover Street, and claimed that preparatory to doing so he turned on his directional lights, slowed down, moved to the center line of the roadway and started his left turn onto Hanover Street. It was then, he said, that his automobile was struck by plaintiff’s motorcycle.

Our summary of the evidence, though brief, suffices to to indicate that plaintiff’s theory of the case was that his testimony, particularly that regarding defendant’s failure to signal his intention to turn, would, if believed, have permitted the jury to find: (1) that the proximate cause of the collision was defendant’s manner of operating his vehicle; and (2) that plaintiff’s operation of his motorcycle was not a contributing factor.

The plaintiff argues that he was entitled to have the jury pass on his theory of the case and that therefore the trial justice, not having otherwise specifically instructed thereon, should have honored his request to explain to the jury that G. L. 1956 (1968 Reenactment) §§31-16-51 and 31-*56816-62 imposed upon defendant an obligation to give an appropriate signal of his intention to turn his vehicle from a direct course or prior to moving right or left upon the roadway.3

It is, of course, axiomatic that the trial justice was obliged to instruct the jury with precision and clarity with respect to the rules of law applicable to the issues raised at trial. Smith Dev. Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 207-08, 308 A.2d 477, 480 (1973); Macaruso v. Massart, 96 R.I. 168, 172, 190 A.2d 14, 16-17 (1963). That obligation was not fulfilled, plaintiff contends, because the trial justice’s refusal to charge as requested deprived the jury of an instruction on the law to be applied in the event it determined that defendant did not signal appropriately.

Although the precise issue raised by this contention is one of first impression in this state, other courts dealing with similar facts have generally held that an instruction that does not clearly explain the effect to be accorded to a motorist’s failure to signal his intention to turn does not so clarify the issues as to make them comprehensible to a jury and is therefore inadequate and erroneous. Petrole v. George A. Fetter, Inc., 411 F.2d 5, 7 (3d Cir. 1969); MacDonald v. Hall, 244 A.2d 809, 814 (Me. 1968); Olson v. *569 Sutherland, 224 Ore. 208, 210-11, 355 P.2d 774, 775 (1960); McMahon v. Young, 442 Pa. 484, 486-87, 276 A.2d 534, 535-36 (1971); Piper v. Miller, 154 W.Va. 178, 188-89, 173 S.E.2d 662, 668 (1970). We see no sound reason for concluding otherwise.

Although the foregoing discussion is dispositive of plaintiff’s appeal, we consider his other assignment of error because the issue it raises will undoubtedly recur at the retrial. That assignment concerns that portion of the charge where, in language substantially tracking §31-14-2,4 the trial justice instructed the jury that speed in a residential or business area in excess of 25 miles per hour “* * * shall be prima jade evidence that the speed is not reasonable or prudent and that it is unlawful.” (Emphasis added.) The plaintiff’s objection centers not on that instruction per se but on the trial justice’s failure to grant his request that it be supplemented with a definition of the term “prima facie evidence.” Those words, he contends, did not convey a simple, plain and sensible meaning and might have led the jurors to the erroneous conclusion that a finding that plaintiff’s speed was in excess of 25 miles per hour required a further finding that he was contributorily negligent.

We need go no further than Wigmore to find support for that contention. He says that “[t]he term ‘prima jade evidence’ or ‘prima jade case’ is used in two senses, and *570it is often difficult to detect which of these is intended in the judicial passage in hand.” 9 Wigmore, Evidence §2494 at 293 (3d ed. 1940). In one sense, he continues, the term is applied so that if the plaintiff makes out a “prima facie case” and the defendant does nothing in response, the plaintiff is entitled to a directed verdict; in the other sense, it denotes the stage of the case at which the plaintiff has produced enough evidence to get the case to the jury for its consideration.5 Id. at 293-94.

“The difference between these two senses of the term,” Wigmore concludes, “is practically of the greatest consequence; for, in the latter sense, it means merely that the proponent is safe in having relieved himself of his duty of going forward, while in the former sense it signifies that he has further succeeded in creating it anew for his opponent.” Id. at 295-96. Certainly, in this case the jury was entitled, though not in the language suggested by the plaintiff,6 to be advised of the sense in which the trial justice was using the term “prima facie evidence.”

*571 John D. Lynch, for plaintiff.

William Gerstenblatt, for defendant.

The plaintiff’s appeal is sustained, the judgment appealed from is reversed, and the ease is remitted to the Superior Court for a new trial.

Armstrong v. Polaski
117 R.I. 565 369 A.2d 249

Case Details

Name
Armstrong v. Polaski
Decision Date
Feb 14, 1977
Citations

117 R.I. 565

369 A.2d 249

Jurisdiction
Rhode Island

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