Chagnon v. United Elect. Rys. Co.
| Decision Date | 30 July 1938 |
| Docket Number | No. 7979.,7979. |
| Citation | 200 A. 949 |
| Parties | CHAGNON v. UNITED ELECTRIC RYS. CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.
Action on the case by Felix W. Chagnon against the United Electric Railways Company for injuries sustained when struck by defendant's trolley car. To review nonsuit, plaintiff brings exception.
Exception sustained and case remitted for a new trial.
Walter I. Sundlun and Baker & Spicer, all of Providence, for plaintiff. Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.
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This is an action of the case to recover for injuries which were received by the plaintiff in being struck by a trolley car of the defendant, while he was walking across Westminster street in the city of Providence, and which he alleges were caused by the negligent operation of the car. At the close of the evidence for him at a jury trial in the superior court a nonsuit was entered on the motion of the defendant and the case is now before us on one exception only, taken by him to the decision of the trial justice granting this motion.
His own testimony and that of other witnesses showed the following facts: The accident occurred on Friday, December 11, 1936, at about 5:45 p. m. At that time he was about sixty-nine years old, in good health and vigor for a man of that age, and in possession of all his faculties. A few minutes before the accident occurred he walked in a westerly direction along the sidewalk on the south side of Westminster street until he reached a point which was just about opposite the middle of Hood street, where it comes into Westminster street from the north, at right angles. Then he proceeded to the curb, stopped there, facing to the north, and looked first to his left and then to his right, preparatory to starting to cross the street to get to a restaurant at the west corner of Westminster and Hood streets, where he planned to have his supper. When he looked to the east, he saw the trolley car which afterwards ran into him and which was being operated and controlled by a servant of the defendant. When the plaintiff then saw it, it was standing at a white pole located on the north sidewalk of Westminster street about 240 feet east of the position of the plaintiff. The car was on the more northerly of the two tracks and was bound in a westerly direction.
Westminster street at and near the scene of the accident was 40 feet wide between curbs. Each of the tracks was 4.72 feet wide between the rails; and the space between the tracks was 4.84 feet. The distance from the southerly or eastbound track to the nearer curb was 12.69 feet and from the northerly track to the north curb was just a trifle more. In the open space between the tracks, a little north of the center line of that space and about two or three feet west of the projection southerly of the westerly line of Hood street, was a sewer cover.
The street was then dark, except as illuminated by the lights from the show windows of stores, which occupied nearly all the space on the north side of the street, and by the street lights, of which one was located, on the north side, about 52 feet east of the sewer cover. There was a drizzling rain and the wind was blowing from the north.
After looking to the west and then to the east, as above stated, the plaintiff waited a few moments until one or two automobiles went by, going east. Then he looked both west and east again, saw the trolley car still stopped at the same place as before and then, the way being clear, he left the curb and started to walk across the street, bearing a little to his left toward the entrance to the restaurant. He walked at his usual speed, which was a rather slow walking speed. He got to the sewer cover and stopped there just momentarily, while he looked to his left and then to his right. He saw the trolley car at Whittaker street, the center of which, according to an engineer's plat in evidence, was just about 105 feet east of the sewer cover.
He then started to cross the rest of the street, still bearing a little to the west, toward the restaurant. As he did so, he looked again to the east and saw the trolley car in front of a cafe, which was at the west corner of Whittaker and Westminster streets. According to his testimony and the plat, the jury could have reasonably estimated that the distance of the front of the car from the plaintiff, as he stepped across the south rail of the track on which the car was coming toward him, was 80 feet. He testified that the car was coming "pretty fast".
As above stated, the distance between the two rails of that track was 4.72 feet; and he testified that he kept on walking across it at his usual walking speed. A nearby witness, who was observing him from the north sidewalk, testified that he increased his speed, as he crossed the track. Just as he was stepping over the north rail, he heard a rushing sound and put up his hand; but the car struck him and knocked him down, without any bell having been sounded or other warning given to him; and the right wheel of the car ran over him.
A witness who was standing at the time of the accident on the north side of Westminster street, a little east of Hood street, testified that as the plaintiff started across the north track, the car was just west of Whittaker street, in front of the barroom or cafe there, which would make its distance from the plaintiff about 80 feet. He estimated its speed at that time as 15 to 18 miles per hour and said that its speed was not slowed down at all before it struck the plaintiff. Other witnesses, who were on the sidewalk near the place of the accident, corroborated this testimony.
A passenger, who was on the car at the time, testified that the front vestibule was crowded with passengers; that on account of the weather conditions outside, and the fact that no windshield wiper was working, the front windows of the car, including the one in front of the motorman, could not be easily or clearly seen through, being "quite misted up"; that he noticed no slackening of the speed of the car until after it struck the plaintiff; and that he thought the motorman shouted just before the car struck the plaintiff.
It is clear to our minds that there was evidence to go to the jury in proof of negligence on the part of the defendant's motorman in charge of its car, in that he failed to see the plaintiff, as he walked across the track from one side to the other, and to check the speed of the car sufficiently to enable the plaintiff to cross in safety or to give him timely warning of his danger. The remaining question is whether there was evidence for the jury that the plaintiff was not guilty of contributory negligence.
On that question this case differs radically in several respects from the typical case in which the plaintiff has...
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