Brierly v. Union R. Co.

• Decision Date: 15 April 1904
• Citation: 26 R.I. 119,58 A. 451
• Parties: BRIERLY v. UNION R. CO.
• Court: Rhode Island Supreme Court

58 A. 451

26 R.I. 119

BRIERLY

v. UNION R. CO.

Supreme Court of Rhode Island.

April 15, 1904.

Action by Asa Brierly against the Union Railroad Company. Judgment for plaintiff, and defendant petitions for a new trial. Petition denied.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Charles E. Gorman, James T. Egan, and C. Woodbury Gorman, for plaintiff.

Henry W. Hayes, Prank T. Easton, and Lefferts S. Hoffman, for defendant.

DOUGLAS, J. This action is brought to recover for loss of services and expenses caused by injuries to the plaintiff's wife, from being thrown from a street car of the defendant corporation. The wife was standing between the seats of an open car as it rounded a curve, and was thrown to the street and injured. The jury found for the plaintiff, and assessed the damages at the sum of $900. The defendant now prays for a new trial on the ground that the verdict is against the law and the evidence, and on account of alleged errors in the charge of the presiding judge. It was claimed on behalf of the plaintiff that his wife was holding to the back of the seat in front of her, and that the car was so propelled that the wheels struck the curve with a violent shock, and her hold was thus broken and the fall ensued. The evidence is conflicting, both upon the question of her having hold of the seat, and upon the speed or regularity of the movement of the car. Most of the witnesses who describe the occurrence say that the speed was not excessive, and that no greater shock was perceptible than is usual and inevitable in striking a curve in the track; but there is no physical fact or circumstance in the case which enables us to say that these witnesses were not mistaken, and, as the jury were entitled to credit the testimony of the lesser number of witnesses, who testify to the contrary, we cannot reverse their decision on the ground that the verdict is against the evidence.

At the trial the defendant offered as a bar to the action a former judgment recovered by the defendant against the wife in an action which she had brought to recover damages for injuries which she had suffered from the same accident, and requested the presiding judge to charge the jury to that effect. He refused to do so, and we think correctly. The cause of action which the husband claimed, though based upon the same occurrence, was not the cause of action which the wife had sued on. He bad no control over her claim or her suit (Cooney v. Lincoln, 20 R. I. 186, 37 Atl. 1031), and was in no way estopped by, the judgment against her. He was not privy to her in blood, estate, or law. Pettengill v. Yonkers (Sup.) 1 N. Y. Supp. 805, is cited as sustaining the defendant's...