Alves v. N.Y., N. H. & H. R. Co.

• Decision Date: 04 June 1906
• Citation: 27 R.I. 581,65 A. 261
• Court: Rhode Island Supreme Court
• Parties: ALVES v. NEW YORK, N. H. & H. R. CO.

65 A. 261

27 R.I. 581

ALVES

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

June 4, 1906.

Trespass on the case by Manuel Alves against the New York, New Haven & Hartford Railroad Company. Judgment was rendered in favor of defendant. Heard on petition for new trial. Petition denied, and cause remitted to superior court with direction to enter judgment on verdict

Argued before DOUGLAS, C. J., and DUBOIS, JOHNSON, and PARKHURST, JJ.

Clark Burdick, for plaintiff. William P. Sheffield, Jr., Max Levy, and William R. Harvey, for defendant.

DOUGLAS, C. J. The plaintiff in this case was assisting in propelling a band car of the defendant corporation. He stood with his back towards the front end of the car and held a wooden bar which passed across the car, through iron sockets, where it was fixed by screws passing through the iron and into the wood. As the bar was lifted it broke off inside the socket which was nearest to the plaintiff. By the breaking of the bar as he was pressing upwards he lost his balance and fell upon the roadbed, and the car ran over him and injured him. At the trial of the cause in the common pleas division, at the close of the plaintiff's testimony, a verdict was directed for the defendant, and the plaintiff, having duly excepted thereto, brings his petition for a new trial. He alleges, also, certain exceptions to the exclusion of evidence which he has not insisted upon.

We think the plaintiff failed to make out a case for the jury. The accident was caused by a defect in the bar which was not obvious and which could not have been discovered without removing the screws and examining the parts of the bar which were concealed by the sockets. In Jones v. N. Y., N. H. & H. R. Co., 20 R. I. 210, 37 Atl. 1033, it was held to be the duty of a railroad company to discover and remedy a defect in its cars which could be discovered by reasonable inspection; but we cannot say, as matter of law, that such an inspection as might have discovered the defect in this bar is required of the company. In Burns v. N. Y., Prov. & Boston R, R. Co., 20 R. I. 789, 38 Atl. 926, it was held, in the absence of testimony that it is customary for railroad companies (or that prudent men engaged in operating railroad trains have ever considered it essential) to remove the spindles from the drawbars for the purpose of inspecting them, that it was not negligence to omit an inspection of the spindle in that manner.

We think the principle of the latter...