Barker v. R.I. Co.

• Decision Date: 23 June 1913
• Citation: 87 A. 174,35 R.I. 406
• Parties: BARKER v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

87 A. 174

35 R.I. 406

BARKER

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

June 23, 1913.

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.

Action by L. Belle Barker against the Rhode Island Company. There was a verdict for plaintiff, motion for new trial was denied, and defendant brings exceptions. Exceptions sustained, and case remitted for new trial.

See, also, 77 Atl. 827.

John W. Hogan, of Providence, for plaintiff.

Joseph C. Sweeney, Clifford Whipple, and Eugene J. Phillips, all of Providence, for defendant.

SWEETLAND, J. This suit is an action of negligence brought by a passenger upon one of the defendant's cars who alleges that she was injured in a collision caused by the negligence of the defendant's servant in allowing the car on which she was a passenger to strike against another car of the defendant company upon its track on North Main street in the city of Providence. The case was tiled before a justice of the superior court sitting with a jury and resulted in a verdict for the plaintiff. The defendant's motion for a new trial was denied by said justice. The case is before us upon the defendant's exceptions to certain rulings of said justice made at the trial and to the decision of said justice upon the motion for a new trial.

By an exception numbered 8 in the bill of exceptions, the defendant excepted to the ruling of said justice permitting the plaintiff to show, by the testimony of her husband, the amount of money he had advanced or loaned to her to pay for medicine, medical attendance, and expenses incident to the sickness which she claims resulted from the injuries received by her in said collision. The ruling was erroneous. This is an attempt on the part of the plaintiff to increase the amount of her damages by putting in evidence a matter which was not an element of her damage. The husband was liable in law to pay for her medicines and medical care. If the plaintiff and her husband saw fit to call the transaction, in which he furnished the money to her for that purpose, a loan of said money, nevertheless the so-called loan created no binding legal obligation on her part to repay such money. A promise on her part to repay would be without legal consideration, and she should not be permitted to recover from the defendant in this action the money so furnished by her husband.

By an exception numbered 12 in the bill of exceptions the defendant excepted to the ruling of said justice refusing to permit the defendant to show by the testimony of a neighbor living in the same house with the Barker family that, during the period when the plaintiff claimed that she was very ill at her home and in a very serious nervous condition, the noise of "playing the piano late and jigging" came from the tenement occupied by the Barker family to such an annoying extent that said neighbor protested against it. The defendant claimed at the trial that the plaintiff was very greatly exaggerating the seriousness of her physical condition. In support of that we think it should have been permitted to show the extent to which, during the period when the plaintiff claimed that she was very sick and nervous, she and her husband allowed the noise of piano playing and dancing to continue in their tenement late into the night. Although the matter is not very important, we are of the opinion that the exception should be sustained.

By exceptions numbered 13 and 14 in the bill of exceptions the defendant excepted to the rulings of said justice refusing to permit the defendant to show by testimony that, during the period when the plaintiff claimed that she was confined to her home as a result of said injuries, her mother-in-law in the evening carried to the plaintiff's house bundles which looked like millinery bundles, and that bundles of similar appearance were taken away in the morning. The plaintiff was by occupation a milliner; and the defendant sought to introduce this testimony for the purpose of showing that during the period when the plaintiff claimed that she was confined to her home and to her bed she was in fact attending to her ordinary business. The testimony in question, if admitted, would not lead reasonably to such conclusion. The exception should be overruled.

By exception numbered 16 in the bill of exceptions the defendant excepted to the ruling of said justice refusing to permit the defendant to ask one of its witnesses the question, "Did she make a statement to you whether or not she would make a claim?" The witness was a claim agent of the defendant who testified that he visited the plaintiff on the day after the alleged accident; that he told her whom he represented and the purpose of his visit; that she said she was in the car in question on the day before and was not hurt in the collision. Following that testimony, we see no valid objection to the question under consideration. This exception should be sustained.

By exceptions numbered 17, 18, and 19 in the bill of exceptions the defendant excepted to rulings of the justice presiding refusing to permit the defendant to read to one of its witnesses, then upon the stand, portions of her testimony taken at a previous trial of this case. The...