After considering the evidence presented in this case, I am unable to reach the same conclusion as that arrived at in the foregoing opinion.
From the testimony it appears that the square or intersection, on the further side of which the accident happened, was reasonably well lighted and between curbs was approximately thirty-seven feet in each direction. The defendant's truck, with its lights on, passed, in a westerly direction, through this intersection well on its right side of the highway at a speed estimated by different witnesses at between twenty and thirty miles an hour. The traffic at the time of the accident was not heavy, visibility was *Page 235 good, and no serious contention is made that the traffic light was other than green, in favor of the truck as it neared and passed under the light. When found, after the accident, the body of the plaintiff's wife was some distance to the north of the middle line of the street she was attempting to cross from the southwest corner of the intersection.
No witness saw the defendant's truck actually strike the deceased. There is no evidence that she was hit by the front of the truck. The testimony of the defendant's driver and of two men who were in different automobiles parked at some distance from the place of the accident, in the direction from which the truck was proceeding, tends to show that she ran suddenly from the sidewalk or from a point in the crosswalk into the side of the truck. No other reasonable inference as to her conduct or the cause of the accident can be drawn from the evidence of these witnesses.
The defendant produced three other witnesses who were in an automobile approaching the intersection from the west and not far away. They saw the defendant's truck but did not see the plaintiff's wife until after the accident. They noticed the truck swerve suddenly to its right and then saw an object falling or lying in the street toward the rear of the truck. In view of the fact that these witnesses did not see the deceased at all until after the occurrence, although obviously she must have been somewhere in the highway immediately before her death, their testimony throws no light on how the accident happened, and no reasonable deduction, which is of aid to the plaintiff, in view of the established facts of this case, can properly be made from such testimony.
Two of the plaintiff's witnesses, who were on the sidewalk near the corner testified in substance that shortly before the accident they saw the deceased, after several attempts, leave the sidewalk to cross the street and that she moved uncertainly back and forth in the roadway for *Page 236 a space of time. They did not see the defendant's truck while observing the deceased's movements, although they testified that the accident itself, the happening of which they did not witness, occurred while they had turned their heads to speak to each other and soon after they saw the deceased moving about in the highway.
The indefiniteness of this testimony, particularly with respect to the relative positions of the deceased and of the truck in the highway shortly before the accident, and the further fact that, according to these witnesses, when she was last seen the plaintiff's wife, with her vision unobscured, was moving uncertainly about in the highway, prevent any proper inference being made in favor of the plaintiff's contention that the deceased was exercising due care under the circumstances.
The trial justice granted the defendant's motion for a directed verdict on the ground that the plaintiff's wife had been guilty of contributory negligence as a matter of law. In my judgment, this ruling was correct. It is not disputed that ordinarily the question of contributory negligence is one of fact for the jury and that if, on any reasonable view of the evidence, the plaintiff can recover, then a verdict should not be directed for the defendant. Nevertheless, it is well settled that if it clearly appears that the only proper inference from the facts is that, in the circumstances of the case before the court, the injured person did not act as an ordinarily prudent person would have acted, then it is the duty of the trial court to direct a verdict for the defendant, if requested. Gilbane v. Lent,41 R.I. 462.
The record is vague and uncertain as to just how the accident in the instant case occurred. The testimony is not sufficiently clear to justify an application of the doctrine of the last clear chance. There is no evidence to show, or from which an inference can reasonably be drawn, that the defendant's driver could have avoided the accident, by the exercise of reasonable care, after the deceased was unable to avoid it, by the exercise of such care on her *Page 237 part; or that he discovered her peril in time to avoid the accident by his own exercise of reasonable care. On the contrary, the only proper deduction from the evidence is that she was herself negligent up to the time of her injury and that within a very few seconds before that happening, she could have avoided the accident by the exercise of reasonable care. In Sarcione v.The Outlet Co., 53 R.I. 76, at page 78, it was held that: "A jury should not be permitted to speculate when there is no evidence that the defendant had the last clear chance to avoid the accident."
I am of the opinion, therefore, that on no reasonable view of the testimony and the proper inferences to be drawn therefrom can the plaintiff recover. In my judgment, the plaintiff's exception to the action of the trial court in directing a verdict for the defendant should be overruled.
MOSS, J., concurs in the opinion of BAKER, J.