Blair v. Granger

Decision Date14 March 1902
Citation51 A. 1042,24 R.I. 17
PartiesBLAIR v. GRANGER, City Treasurer.
CourtRhode Island Supreme Court

Trespass on the case by Frederick L. Blair against D. L. D. Granger, city treasurer, for injuries received while driving on a parkway. Judgment was rendered for defendant, and plaintiff files a petition for new trial. Petition denied.

Argued before STINESS, C. J., and TILLING HAST, and ROGERS, JJ.

Matteson & Healy, for plaintiff.

Francis Colwell, City Sol., for defendant.

ROGERS, J. This is a petition for a new trial of an action of trespass on the case for negligence against the city of Providence, in which the plaintiff was nonsuited. The declaration alleged that the city of Providence was possessed of a certain machine, moved and operated by steam, called a "steam roller," which was used by said city in the making and building of streets and highways, and that it was using and operating said steam roller on one of the highways or streets in, to wit, Roger Williams Park, being a public park in said city of Providence; that said machine, from its appearance alone while at rest, and from its appearance and the loud hissing, screeching noise made and emitted by it when in operation, was an object which would frighten ordinary horses, which fact was well known to said city of Providence, its agents and servants, whereby it became and was the duty and also the custom whenever said city, its agents and servants, were using said steam roller, to erect warning signs in the highways or streets sufficiently remote from the place where said steam roller was at work to warn and notify all persons with horses, teams, and carriages that a steam roller was at work near by, or to place a watchman or flagman to give such warning; yet said city of Providence, its agents and servants, etc., so negligently operated said steam roller in and upon one of the main streets or highways in said Roger Williams Park without erecting any sign or giving any notice that the plaintiff, who was there lawfully driving in and upon one of the highways in said Roger Williams Park, and while in the exercise of due care, came suddenly and without warning, etc., whereby the plaintiff was greatly injured, etc. The defendant pleaded the general issue, and also specially in bar because it said that the plaintiff then and there had driven into and was driving in said park a laundry team and carriage for the purpose of business, without permission from the superintendent of said park, contrary to law and the ordinances of said city then and there in force regulating the use of said Roger Williams Park, to wit, Ord. 1887, c. 36, entitled "Parks," § 5, reading as follows: "Sec. 5. No person shall drive any heavy team, any swill or residuum cart, or any team or carriage for the purpose of business, into any park without permission of the superintendent of said park;" and that said plaintiff so driving was a trespasser in and upon said park, and was guilty of a misdemeanor, punishable by fine, as specified in section 11 of said chapter, then and there in force, reading as follows: "Sec. 11. Any person violating any provision of this chapter shall be fined not exceeding $20, or be imprisoned for not exceeding ten days for each offense;" and that said city did not then and there owe said plaintiff, then and there trespassing as aforesaid, and violating said law as aforesaid, said duty alleged in said declaration, etc. Upon these pleas the plaintiff joined issue, and the case was tried to a jury. The statement of the evidence upon which the petition for a new trial was heard showed that on the day of the accident the plaintiff had been engaged all day until 5 p. m., the hour of the accident, about his business of collecting and delivering laundry in the city of Providence, with a horse hitched into a light, covered express wagon, with a plain black top, without any lettering or sign whatever; and the plaintiff admitted in his brief that at the time of the accident there were in this wagon, hidden from view, two baskets in which packages of laundry were placed. The plaintiff had finished his day's work, except taking his horse and wagon to the stable where they were kept overnight, and on leaving Washington Park, so called, below Roger Williams Park, as it was a pleasant day, and a little early for him to quit work, he turned into Roger Williams Park, intending to go home that way, though not the shortest way, because, in his opinion, it was so much pleasanter; and while he was thus driving through the park the injury complained of occurred. Upon the plaintiff's resting his case the defendant moved for a nonsuit on the ground that the plaintiff was using the park "for the purpose of business," in violation of the ordinance above set forth, and the nonsuit was granted, whereupon the plaintiff petitioned for a new trial. We think a nonsuit in this case was properly granted, though not for the reason for which the motion for a nonsuit was sustained.

1. It is not clear, either from the record or the statement of evidence, exactly on what principle of law this action was intended to be based, further than that it was a claim for damages alleged to have been suffered through the negligence of the agents and servants of the city of Providence, for whose acts it is contended the city was liable; for the declaration nowhere states, save inferentially, that the place where the injury was done was a...

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    • 28 Septiembre 1917
    ......Burns, 131 Tenn. 281, 174 S.W. 1111, L. R. A. 1915D, 1108; Bisbing v. Asbury Park, . 80 N.J.L. 416, 78 A. 196, 33 L. R. A., N. S., 523; Blair. v. Granger, 24 R. I. 17, 51 A. 1042; Board of Park. Commrs. v. Prinz, 127 Ky. 460, 105 S.W. 948; Ackeret. v. City of Minneapolis, 129 Minn. ......
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    • 20 Enero 1931
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    • 15 Octubre 1912
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