Belliveau v. Bozoian

• Decision Date: 23 June 1924
• Docket Number: No. 5776.,5776.
• Parties: BELLIVEAU v. BOZOIAN.
• Court: Rhode Island Supreme Court

125 A. 82

BELLIVEAU

v. BOZOIAN.

No. 5776.

Supreme Court of Rhode Island.

June 23, 1924.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Austin Belliveau against Hachadoor Bozoian. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, and case remitted, with directions to enter judgment on verdict.

Herbert L. Carpenter, of Woonsocket, for plaintiff.

James H. Rlckard, of Woonsocket, for defendant.

SWEENEY, J. This action of trespass on the case for negligence is brought to recover damages for personal injuries sustained by the plaintiff on account of being struck by a truck driven by the defendant's servant. After a trial in the superior court, the jury returned a verdict for the plaintiff. The defendant's motion for a new trial was denied by the trial justice, and he has brought the action to this court by his bill of exceptions.

Plaintiff testified that about 7:30 o'clock a. m. on the 1st day of March, 1918, he was walking in a westerly direction on the right-hand edge of the macadam in the state highway in the village of Slatersville, because the sidewalk was muddy; that the trolley car rails were on his right; that he heard a noise, and turned and saw a truck coining towards him; that he jumped away from the truck towards the middle of the car track, and before he knew it he was knocked down and injured.

The driver of the truck testified for the defendant, and said that as he approached plaintiff from the rear he sounded his horn, and the plaintiff stepped a little to his right side; that he had ten feet in width of good road in which to pass plaintiff on his left that as he drove past him there was about two feet clearance, and that, as the front part of the truck passed him, its rear end skidded about a foot to the right; that he looked back and saw the plaintiff getting up, and he stopped the truck, and assisted the plaintiff to get to a doctor's office near by. He testified that there was no ice on the ground; that he did nothing to cause the truck to skid; and that there was nothing he could have done to prevent its skidding. The only other person who saw the accident testified that the plaintiff was struck by the rear end of the truck.

The defendant claims that the testimony does not prove that his servant was negligent in the operation of the truck, and that it shows that the plaintiff was guilty of contributory negligence in not going further to the right to avoid being hit by it; and consequently that the trial justice erred in not granting his motion for a directed verdict.

It is well established that pedestrians have in general, and under reasonable restrictions as to exercise of care by them, a right to travel anywhere upon a public highway, and it is negligence for a driver of a vehicle upon a public highway to recklessly run upon a pedestrian who is standing or walking with his back toward him. Kerry. Automobiles (2d Ed.) § 220; Hall v. Albertie, 140 Md. 673, 118 A. 189; State v. Disalvo (Del. O. & T.) 121 A. 661: Emery v. Miller, 231 Mass. 243, 120 N. E. 655. A pedestrian using the public highways, and exercising ordinary care for his own safety, may assume, until he has knowledge or notice to the contrary, that the drivers of automobiles will exercise reasonable care to avoid injuring him, and that they will observe the law. He is not negligent in acting upon this assumption and regulating his conduct accordingly. Berry, Automobiles (2d Ed.) § 219: Benoit v. Miller (R. I.) 67 A. 87. Section 12, chapter 86, General Laws 1909, in force at the time plaintiff was injured, provides, among other things, that "upon approaching any person * * * walking in the traveled portion of any public highway * * * and also in passing such person * * * the person operating...