City of Pawtucket v. Bray

• Decision Date: 09 April 1897
• Citation: 20 R.I. 17,37 A. 1
• Parties: CITY OF PAWTUCKET v. BRAY et al.
• Court: Rhode Island Supreme Court

37 A. 1

20 R.I. 17

CITY OF PAWTUCKET

v. BRAY et al.

Supreme Court of Rhode Island.

April 9, 1897.

Action by the city of Pawtucket against A. P. & P. Bray. Judgment for plaintiff.

James L. Jenks, for plaintiff.

Arnold Green, for defendants.

STINESS, J. The defendants are the proprietors of a store on Main street in the city of Pawtucket, from the cellar of which they operate a freight elevator to the sidewalk in front of the store. The elevator well is covered by an iron grating, opening from the center in two parts on hinges at the sides, at right angles from the front of the building. On the 26th of November, 1889, while they were using the elevator, Mrs. Julia Major, who was passing along the sidewalk about dusk, stepping sidewise, fell into the opening, and was injured. She brought a suit against the city of Pawtucket, and the defendants were notified to appear and defend it, as the city would look to them for any judgment which might be recovered. The case was tried. The defendants did not appear, and judgment was obtained against the city for the sum of $3,400, which has been paid. This suit is for reimbursement by reason of the ultimate liability of the defendants.

The right to reimbursement is recognized in Bennett v. Fifield, 13 R. I. 139, where the court says that, if the town is forced to pay for the injury, it will have an action over against the party who placed the obstruction in the highway. The case of Hill v. Bain, 15 R. I. 75, 23 Atl. 44, is a practical recognition of the same thing, because one reason assigned for overruling the demurrer to the town's plea of former judgment against the plaintiff in favor of the alleged wrongdoer was that, if the wrongdoer should be notified to come in to defend the suit, and should do so, he would be entitled to the benefit of his former judgment. But the only ground upon which he could assume the defense of the suit against the town is the right of the town to call upon him for reimbursement. See, also, the recent case of Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 16 Sup. Ct. 564, and Dill. Mun. Corp. (4th Ed.) § 1035, and cases cited. We do not understand the defendants to deny that this rule is established by the decided weight of authority, but they claim that under the decision of this court in Adams v. Fletcher, 17 R. I. 137, 20 Atl. 263. the fact of an opening in the sidewalk is not of itself a nuisance, and that the court must find that the defendants were negligent in the use of it. We agree with the decision in that case that an opening in the sidewalk, if properly constructed, is not a nuisance; and in that case, as well as in this, so far as appears, such was the fact. But the case of Adams v. Fletcher was an action against the owner of a building who had leased it to a tenant who was in occupation, and it was by the negligence of the tenant, or those who were serving him with coal, that the cover was left off at the time of the injury. There was no negligence on the defendant's part. But in this present suit the cause of the injury was the negligence of the servants of these defendants, and we see nothing in Adams v. Fletcher which excuses them. The party injured could have sued originally either these defendants for their negligence, or the city of Pawtucket, or both. Bennett v. Fifield, 13 R. I. 139. Having sued the city, it has its action over against the party primarily responsible for the injury by reason of negligence in the use of an opening, not in itself a nuisance. This being so, we think it follows, from the cases cited above, that the defendants, who were duly notified to...