Camaras v. Moran

• Decision Date: 11 May 1966
• Docket Number: 10826,Nos. 10825,s. 10825
• Citation: 219 A.2d 487,100 R.I. 717
• Parties: Bonnie C. CAMARAS, p.p.a. v. Veronica MORAN. Clara CAMARAS v. Veronica MORAN. Ex.
• Court: Rhode Island Supreme Court

Page 487

219 A.2d 487

100 R.I. 717

Bonnie C. CAMARAS, p.p.a. v. Veronica MORAN.

Clara CAMARAS v. Veronica MORAN.

Ex. Nos. 10825, 10826.

Supreme Court of Rhode Island.

May 11, 1966.

DelSesto & DelSesto, Christopher T. DelSesto, Jr., Providence, for plaintiffs.

Coffey, Ward, McGovern & Novogroski, Charles J. McGovern, Providence, for defendant.

KELLEHER, Justice.

These actions of trespass on the case were brought by the minor plaintiff and her mother against the defendant for personal injuries and consequential damages, respectively, incurred when the minor daughter collided with a milk bottle. The cases were tried together before a justice of the superior court sitting with a jury which returned a verdict for the defendant in each case. The plaintiffs have filed identical bills of exceptions. Since recovery in the mother's case depends upon the defendant's liability to the minor daughter, we shall treat the cases as if only the minor daughter's case was before us but our conclusion will apply to both.

The plaintiff has filed seven exceptions. However, we shall consider only those exceptions which she has briefed and argued. Under our rules all other exceptions are deemed to be waived.

On August 28, 1962 Bonnie C. Camaras age eight years and Veronica Moran age fifteen years left the Camaras home together and proceeded to a neighborhood store where each obtained certain items for their respective mothers. The plaintiff purchased ice cream and defendant purchased a bottle of milk. The returned to the Camaras residence and entered the premises through the garage from which a side screen door opened to the kitchen where Mrs. Camaras was preparing lunch. The plaintiff sat in a chair and took off her shoes and socks to examine a blister on her right foot. She then arose from the chair and started hopping on her left foot towards the screen door when she collided with the bottle of milk. The bottle 'splattered' and Bonnie received injuries to her right foot which required hospitalization and surgery.

It is at this point that the parties hereto disagree. The plaintiff's mother testified that the gallon bottle of milk was placed against the riser of the step which led from the garage to the kitchen. The plaintiff corroborated her mother's testimony and stated she could not see the bottle because defendant was standing in front of it and that as she hopped to the kitchen door defendant stepped to one side and plaintiff hopped onto the bottle breaking it.

The defendant, however, testified that she had purchased a half-gallon bottle of milk and had placed it beside a table that was in the garage some three feet away from the kitchen step. She heard a crash, and saw Bonnie standing at the table, the bottle broken. She denied that the bottle was in front of the step.

Anthony P. Ferrara testified on the second day of trial as a rebuttal witness for plaintiff. He was not present at the time of the incident and had gone to the Camaras home to clean up the broken glass which he stated was in front of the kitchen step. Thereafter, plaintiff made a motion for a continuance of the trial to the following morning so that the testimony of a police officer who had transported minor plaintiff to the hospital could be heard. The motion was denied and this ruling constitutes one of plaintiff's exceptions.

A motion for a continuance is addressed to the sound discretion of the trial justice. His decision will not be reversed unless there is a clear abuse of discretion. Martin v. Hammond, 89 R.I. 98, 151 A.2d 114; D'Acchioli v. Cairo, 87 R.I. 345, 141 A.2d 269.

It is the joint obligation of the bar and court to dispose of litigation in an orderly, prompt and expeditious manner. Here trial counsel for plaintiff informed the court that a witness subpoena had not been issued, that the police officer was on his day off, and that his testimony would be cumulative. These admissions of trial counsel amply warranted the denial of the motion for continuance. We find no abuse of discretion and plaintiff's exception to the denial of the motion is overruled.

One of plaintiff's exceptions is to a portion of the charge wherein the trial justice said that if the incident was a mere accident, then the jury should return a verdict for defendant. The court in its charge failed to distinguish between a pure accident, i.e., an occurrence to which human fault does not contribute, and an actionable accident, i.e., an occurrence which arises from the carelessness of men. The use of the term accident alone, or together with the adjectives mere, pure, inevitable or unavoidable, has given rise to a plethora of litigation.

As stated in Nave v. Flack, 90 Ind. 205, 210: 'The poverty of language compels the use of words in different meanings, and this is notably true of the word 'accident.' Strictly speaking, an accident is an occurrence to which human fault does not contribute; but this is a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men.'

It is apparent that the word 'accident' does not necessarily preclude fault or negligence. In an attempt to distinguish between accident as embodying the element of negligence from other unintended or unexpected events, the terms 'mere accident,' 'pure accident,' or 'unavoidable accident' have been often used. Some courts have held that the mention of such phrases in a charge is not...