Bines v. United Electric Rys. Co.

• Decision Date: 10 January 1930
• Docket Number: No. 6378.,6378.
• Citation: 148 A. 417
• Parties: BINES v. UNITED ELECTRIC RYS. CO.
• Court: Rhode Island Supreme Court

148 A. 417

BINES

v. UNITED ELECTRIC RYS. CO.

No. 6378.

Supreme Court of Rhode Island.

Jan. 10, 1930.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Action by Carrie M. Bines against the United Electric Railways Company. A verdict was directed for defendant, and plaintiff excepts. Exceptions overruled, and case remitted, with directions.

Fitzgerald & Higgins and Walter V. Moriarty, all of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

PER CURIAM. Heard on plaintiff's exception to direction of a verdict for defendant at the close of evidence for both sides.

At the first trial of this case, direction of a verdict for defendant after hearing only testimony for the plaintiff was held erroneous. 133 A. 624. The facts are there stated. We have re-read the testimony at the first trial wherein, on plaintiff's showing that ice was on the "plug" in the floor of the car covering a metal plate six inches to one foot in diameter, that the ice showed a line across it which inferentially might have been caused by a heel, and that there was a depression in the middle of the plate in which ice had formed hard enough to be scratched but not broken by plaintiff's fall, this court said there was enough evidence to compel defendant to explain the presence of ice or show that defendant had not had a reasonable time to know of and remove it.

At neither trial did any one testify to seeing the ice prior to the accident, although one witness said the spot "looked as if heels or feet of people had packed it in." The principles upon which defendant may be liable for damages arising from presence of ice or snow on exposed portions of the car were discussed in Riley v. R. I. Co., 29 R. I. 143, 69 A. 338, 15 L. R. A. (N. S.) 523, 17 Ann. Cas. 50, and referred to in 133 A. 624, supra. Those applying to liability for damages arising from presence of snow or ice on the floor of the car are similar. In either case negligence, if existent, is because of failure to use due care under the circumstances. We recognize no degrees of negligence. Leonard v. Bartle, 48 R. I. 101, 135 A. 853.

At the present trial defendant's conductor and motorman testified. The nature and size of the plate were described. The cause of the fall was definitely fixed as slipping on the metal plate or cap. This was flush with the cleated floor, was one and one quarter inch in diameter, and screwed down. A witness for plaintiff said it was "covered with a very thin scum of ice." The floor was clean, though wet, when the car left the terminus of the line one-half hour prior to the accident, and in the meantime "three notches" of heat were on....