Clark v. N.Y., N. H. & H. R. Co.

• Decision Date: 27 June 1913
• Parties: CLARK v. NEW YORK, N. H. & H. R. CO.
• Court: Rhode Island Supreme Court

87 A. 206

35 R.I. 479

CLARK

v. NEW YORK, N. H. & H. R. CO.

Supreme Court of Rhode Island.

June 27, 1913.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Mary Clark against the New York, New Haven & Hartford Railroad Company. There was a verdict for plaintiff, and a new trial was granted save as to one issue, and she excepts. Exceptions overruled.

A. B. Crafts, of Providence, for plaintiff.

Joseph C. Sweeney and Eugene J. Phillips, both of Providence, for defendant.

JOHNSON, C. J. This is an action of trespass on the case brought by Mary Clark of Bristol, R. I., against the New York, New Haven & Hartford Railroad Company to recover damages for injuries alleged to have been sustained by her while riding as a passenger on a train of the defendant between Swansea, Mass., and Warren, R. I., January 3, 1907.

The case has been tried twice. At the first trial, which occurred in May, 1908, the plaintiff recovered a verdict of $5,000. A new trial was granted on motion of the defendant on the ground that the plaintiff had released her claim. The case was tried again, June 20 to 27, 1910, and resulted in a verdict for the plaintiff in the sum of $2,000. The plaintiff thereupon moved for a new trial, asking the court to restrict the issues on the new trial to the question of damages. That motion was denied by the trial court on the ground that it had no power to grant such a motion. The plaintiff excepted to this ruling, and the Supreme Court held that the trial court had such power and sent it back for hearing on the motion. Clark v. N. Y., N. H. & H. R. R. Co., 33 R. I. 83, 80 Atl. 406, Ann. Cas. 1913B, 356. Thereupon plaintiff's said motion for a new trial on the question of damages was heard, and a new trial was granted on all the issues except the issue concerning the release. To this decision the defendant excepted, and the case is now before the court for hearing upon defendant's bill of exceptions, including this exception and others taken during the course of the trial.

The facts surrounding the accident upon which the suit is based are, briefly, these: On January 3, 1907, the plaintiff, with her son, boarded the 9:15 p. m. train at Fall River bound for Warren. The stretch of railroad upon which she was traveling was operated by the overhead trolley electrical system. The method of construction consists in poles located on the side of the right of way with projecting arms to which are attached wires for the purpose of supporting the trolley wire convoying the current. The train upon which the plaintiff was traveling consisted of two cars. In the head ear was located the motor. The plaintiff was seated in the second car. On top of the head car was a trolley pole, in many features resembling the trolley pole that is found upon the ordinary street car. This pole at its base fitted into a socket, and was held in place by a clamp with bolts. These bolts could be loosened or tightened for the purpose of holding or removing the trolley pole itself; the holding force being the friction the clamps exerted on the sides of the pole at its base. This mechanism was known as the trolley pole base. In it was located a spring. On the other end of the trolley pole was a wheel which traveled on the trolley wire. The wheel was held against the wire by the pressure of the spring. High rates of speed were at times attained on this stretch of railroad, and it resulted from this that at times the trolley pole would leave the trolley wire. To guard against this, a man was employed upon the train known as a trolley tender. At the peak of the trolley pole a rope was attached. When the train was in motion, this rope hung down between the platforms of the two cars, and it was the duty of the trolley tender to stand on the platform of one of the cars, holding the trolley rope in his hands; this, so that in case the trolley wheel left the wire he could pull down on the rope and so prevent the trolley pole from striking against the span wires or cross-arms, and also to enable him to replace it upon the trolley wire. On the night of the accident, somewhere between Swansea and Warren, the trolley wheel left the wire. As the trolley tender pulled down on it, it probably struck or was caught by the mechanism attached to the cross-arm, the pole pulled out of its socket, dropped on the roof of the car, and in falling to the ground broke the window glass near where the plaintiff was sitting.

The only negligence insisted upon at the trial was the negligence of the trolley tender on the electric train in allowing the trolley pole to get away from his control. This caused the pole, it is alleged, to strike against span wires and to rebound against the roof of the car until it came out of its socket, fell on the roof of the second car, and off to the ground. In some way the glass of the window of the car beside the seat in which Mrs. Clark was riding was broken, probably by the trolley pole. The glass scattered upon her and her alleged injuries resulted. It was admitted at the trial, by plaintiff's counsel, that there was no defect in the apparatus, that it was proper apparatus, and that it was reasonably inspected.

The defendant's first 28 exceptions are waived.

Exception 29 is to the refusal of the justice at said trial to direct a verdict for the defendant. From our examination of the evidence we find no error in this refusal.

Exceptions 30, 31, 32, and 33 all involve the same point and are argued together by defendant's counsel. We will consider them together.

Exception 30: To that part of the charge of said justice at said trial in the matter of accord and satisfaction with regard to how that matter may be understood at the time, as follows: "If, on the other hand, it was understood and agreed between them that as a part performance of this undertaking of theirs to pay her the hundred dollars that the hundred dollars should actually be paid before the release was effective, then the release would not be binding upon her until the money was received and accepted by her; even a tender by the defendant would not in that case be sufficient to wipe out and extinguish the original claim. An accord and satisfaction means exactly what it says. It means an agreement as to the amount and a payment of that amount by the defendant company and an acceptance or receipt of that amount by the plaintiff and that any time up to the time it is actually received by the plaintiff there is no satisfaction. It is the performance by the defendant of that which it undertakes to do that renders the agreement an accord and satisfaction and binding upon the defendant."

Exception 31: To that part of the charge of said justice at said trial in the matter of accord and satisfaction with regard to how that matter may be understood at the time as follows: "If, however, that is not the case and it was further understood as a further act on the part of the defendant, to carry out this obligation which is incorporated in this release, to pay her the hundred dollars as a further performance of the original obligation, then it is not binding upon her and she is entitled to ignore that release and bring her action. I hope, gentlemen, I have made myself understood by you as to the difference when the release would be binding and when it would not. If I have not, if any one of you think you do not fully understand it, if you would suggest that fact I would make an effort to explain it to you still further."

Exception 32: To that part of the charge of said justice at said trial in the matter of accord and satisfaction with regard to how that matter may be understood at the time, as follows: "If she signed a paper, lacking sufficient mental capacity to understand it and her lack of mental capacity had been created by the negligence of the defendant company, then the paper would not be binding upon her unless the amount agreed to be paid in satisfaction was actually paid, unless it was understood between her and the company that the promise to pay was accepted as a release of their obligation to her by reason of the injury. An accord and satisfaction is treated by the courts as an extinguishment of the original claim, but there must be not only an agreement between the parties as to what shall be done and how much shall be paid, but there must be actual performance of that, unless the agreement is itself accepted as an extinguishment of the claim, in which case the parties would substitute a new cause of action for the original and the claimant would have to proceed upon the defendant's promise to recover such sum or to secure performance of such duty as they had agreed to perform. That is the rule in regard to accord and satisfaction."

Exception 33: To that part of the charge of said justice at said trial in the matter of accord and satisfaction with regard to how that matter may be understood at the time as follows: "That is granted, gentlemen, unless you shall find as I have already stated in regard to the accord and satisfaction. If you shall find that the signing of the release and the promise contained in it by the defendant was not to be received in satisfaction of her obligation, it would not be binding upon her because the consideration was not received by her."

Defendant's counsel argue as follows: "The jury were instructed that, in order to find the release valid, they were not alone to find that the plaintiff had sufficient mental capacity to understand its effect, but that they must also find the promise of the defendant to pay was accepted by her in extinguishment of her cause of action. The defendant does not complain of this as a statement of the law, but it does urge that there was no reason at all why the jury should have been charged upon the subject of accord and satisfaction;...