Clarke v. R.I. Elec. Lighting Co.

• Decision Date: 16 February 1889
• Citation: 17 A. 59
• Parties: CLARKE et ux. v. RHODE ISLAND ELECTRIC LIGHTING CO.
• Court: Rhode Island Supreme Court

17 A. 59

CLARKE et ux.

v. RHODE ISLAND ELECTRIC LIGHTING CO.

Supreme Court of Rhode Island.

Feb. 16, 1889.

Upon petition for a new trial.

Daniel R. Ballou and Frank H. Jackson, for plaintiffs. Benj. F. Thurston, William, W. Douglass, and Samuel T. Douglass, for defendant.

DURFEE, C. J. The female plaintiff was injured while passing through a private gangway in the city of Providence, by having a step-ladder, which was left leaning against a building in the gangway by the defendant's servant, blown over or fall over upon her. She sued the defendant, and has recovered damages; the ground of her action being that her injuries resulted from the negligence of the servant in leaving the ladder as he did. The case was tried in this court, and comes before us now on motion for new trial. The questions presented depend so entirely on the testimony, and the facts and circumstances shown thereby, that these facts and circumstances need to be carefully stated. The gangway leads from Westminster street,—the principal business street of the city,—to "Exchange Place," so called. It is eighteen feet wide, smoothly concreted between the curbs. Twenty feet from Westminster street, and fifteen feet above the sidewalk, which is two and a half feet wide, there is a sign fastened to Brownell's building, a business block abutting on the gangway, on which sign the words are, "Private Property. Dangerous Passing." The first story of Brownell's building was leased to the firm of B. K. Gladding & Co., who used it as a dry goods store. They used the gangway under their lease for the receipt and discharge of merchandise. There was a door opening on it, through which their employes, numbering 56, were required to come and go, and through which their customers were also accustomed to come and go, using the gangway for the purpose. A member of the firm testified that the store was narrow, and apt to fill up in front so that there was difficulty in passing through, and consequently the customers were in the habit of going out and in by said side door. The plaintiff entered the store from Westminster street, and, when she had finished her shopping, finding the front crowded, passed out by the side door, as she had been accustomed to do, for the purpose of going through the gangway to Westminster street, and met with the accident while doing so. When she came out, the step-ladder was on the sidewalk, 40 feet distant, towards Westminster street. The step-ladder was 9 feet high, and was used by the defendant's servant in his work as servant. The defendant was maintaining electric lights for the firm of B. H. Gladding & Co. A box containing electrical apparatus for switching the lights on in the store was fastened to Brownell's building 15 feet above the sidewalk where the ladder stood. The servant had charge of the lights in the store and along Westminster street, and, just before the plaintiff came out of the store, had been using the ladder to reach the box in the proper performance of his service. After doing what was required, he left the ladder standing unsecured, and went into a store in Butler Exchange on the opposite side of the gangway. It does not appear for what purpose he went, but he returned in about five minutes, just after the accident had occurred. He testified that he had, earlier in his employment, been accustomed to leave the ladder lying on the walk; but a lady caught her dress in it one day, while it was so lying, and the janitor of the building told him to leave it standing. The janitor testified that he told the servant that it was dangerous to leave it standing, and a member of the firm testified that he had considered it dangerous, and told the janitor that he did not wish it left there. The accident occurred November 4, A. D. 1887, between 1:30 and 2 o'clock P. M. The day had been blustering, the wind blowing in gusts, and at the time of the accident was blowing quite violently from the north. The plaintiff came out into this wind,—"blowing very hard almost continuously," says a witness who saw the accident,—and immediately noticed a noise, which she supposed might be caused by a horse running away, and which seems to have alarmed and confused her, so that she was near the ladder before she perceived that it was swaying in the wind, and making the noise that she heard, or realized the danger she was in from it. She then attempted to run across the gangway to escape, the wind all the while blowing strongly against her, and was overthrown in doing so, the ladder falling on top of her.

At the close of the testimony for the plaintiffs, the defendant made several requests for instruction to the jury, which the court refused to grant. This refusal is the ground of the motion for a new trial. The requests were, in effect, requests to the court to charge that their testimony did not show that the defendant's servant was guilty of any negligence, or that, if it did, it also showed that the plaintiff was equally guilty of negligence, or was at least guilty of contributory negligence, and was not, therefore, entitled to recover. Generally, the question of negligence is a question of fact to be...