Colgan v. United Electric Rys. Co.

• Decision Date: 24 May 1940
• Docket Number: No. 8221.,8221.
• Citation: 13 A.2d 385
• Parties: COLGAN v. UNITED ELECTRIC RYS. CO.
• Court: Rhode Island Supreme Court

13 A.2d 385

COLGAN

v. UNITED ELECTRIC RYS. CO.

No. 8221.

Supreme Court of Rhode Island.

May 24, 1940.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Action of trespass on the case by Helen Colgan against the United Electric Railways Company, for injuries suffered while boarding electric car. On defendant's exceptions to order denying defendant's motion for new trial after verdict for plaintiff.

Exceptions sustained in part and overruled in part, and new trial ordered subject to remittitur.

Quinn & Quinn and Michael De Ciantis, all of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action of trespass on the case for negligence brought by the plaintiff for injuries received while boarding an electric car operated by the defendant. The accident occurred about midnight of October 21, 1935, on Cranston street in Oaklawn, Cranston. After a jury trial and a verdict for the plaintiff in the sum of $13,250, the defendant's motion for a new trial was denied and the case is here on defendant's bill of exceptions.

The specific questions raised by the exceptions, upon which the defendant relies, are as follows. Did the trial justice err (1) in denying defendant's motion for a direction of verdict; (2) in denying defendant's motion for a new trial on the usual grounds and the further ground that the damages are excessive; and (3) in admitting or excluding certain evidence in the course of the trial ?

The car in question was inbound from Oaklawn to Providence. According to the direction in which the car was proceeding, the car tracks at the place of the accident are located on the right-hand side of Cranston street, and there is practically no sidewalk to the right of those tracks. It is admitted that it was a clear and pleasant night; that the car was stopped for the purpose of allowing the plaintiff and a friend, Evelyn G. Pomfret, now Mrs. Benson, to board the car; that at that time they were standing in the street to the left of the tracks; that the two folding doors on the left of the front vestibule were opened to receive them as passengers, and that they proceeded to board the car through those doors.

On the outside of this one-man car, so-called, there is a folding step which leads to the platform of the front vestibule. This step is connected with the doors in such a way that it is automatically lowered or raised with the opening or closing of the doors. Each door is in two sections. When they are opened, the sections of the rear door fold up against the body of the car and those of the front door fold up against the forward end of the vestibule. When the doors are closed, they come together near the edge of the platform and parallel to it. The construction of the edges of the doors, where they come together when closed, is the subject of conflicting evidence. The doors and outside step operate by air pressure.

On the platform of the vestibule, midway between and about four inches inside of the doors, there is an iron stanchion. The outer edge of the operator's seat is two feet, seven inches from the edge of the platform. The doors are opened or closed by means of a horizontal valve handle which operates within the length of a minor arc, the limits of which are fixed when the operator assumes control of the car. The operator moves this handle by hand within that arc. The handle is located in the extreme front left corner of the vestibule, at an angle of approximately forty-five degrees in front of and to the left of the operator. On car number 2182, which is the one involved in this accident, the handle was moved by the operator towards him, or "clockwise", to close the doors, and away from him, or "counter-clockwise", to open them. The controller box and the various levers used in starting or stopping the car are located directly in front of the operator, while the coin box, where a passenger deposits his fare, is near the operator and to his right.

The parties agree that the car cannot be started while the doors are fully open, as the electric contact is broken and the power cannot be applied when they are in that position. One of the main points in dispute in this case is how nearly closed the doors must be in order to make it possible to start the car. The defendant contends that the doors must be completely closed or "practically" so before the car can be started. The plaintiff, on the other hand, contends that the mechanism controlling the doors can be so adjusted that the necessary electric contact will be made and the car started when the edges of the closing doors are three inches or more from each other. We will later refer to the conflicting testimony on this point and other such testimony with relation to the character of the edges of the doors.

On the question of defendant's liability, the plaintiff's claim in general terms is that, while she was boarding the car her right ankle was caught between the closing doors and was severely injured as a result of the operator then starting the car without warning. The defendant does not attempt to explain the cause of plaintiff's injury its defense to her claim is that the accident could not have happened in the manner testified to by the plaintiff as the car could not be started until the doors were closed, or so nearly closed that it was impossible for the plaintiff's ankle to be struck by the edges of the closing doors. The testimony on this point is, therefore, in serious conflict.

In reviewing the testimony now before us, we will confine ourselves to the situations immediately preceding and following the accident, as our previous opinion in this same case substantially sets forth the testimony on points of lesser importance. For such testimony, reference is therefore made to the case of Colgan v. United Electric Rys. Co., R.I., 4 A.2d 258.

The plaintiff testified that she started to board the car to her left of the iron stanchion, as Miss Pomfret was boarding the car to the right thereof. Her testimony, in substance, is that, with her left foot on the platform of the vestibule and her right foot on the step outside and while she was holding the stanchion with her right hand, she leaned forward to raise herself to the vestibule platform; .that as she was proceeding to enter the vestibule from this position, she, with her left hand, gave the operator a dollar bill, which she had previously taken from her pocketbook, to pay the fares for herself and Miss Pomfret; that she then continued to board the car, and that as she was "dragging" her "right foot in" to place it on the platform of the vestibule, she felt "something" strike her ankle and the car started, throwing her to the floor of the vestibule and rendering her unconscious. She was in the hospital when she became conscious.

In its brief and argument to us the defendant strongly contends that the electric contact necessary to apply the power and start the car could not possibly be effected while a person is standing with one foot on the step and the other in the vestibule. It argues that in such a situation the person's body would be in the doorway and that this would prevent the doors from completely or almost completely closing, which must be the case before the necessary electrical contact is made to start the car. It also argues that the outside step and the doors will not move with a weight of about fifty pounds on that step. The plaintiff weighed about one hundred and eighty pounds.

We have scrutinized the plaintiff's testimony with reference to the position of her right foot and body when she claims that her ankle was injured by the closing of the doors. In her entire examination she repeatedly testified that: "I was about to drag my foot in * * * I was dragging my right foot in. * * * I was just about to drag it in on the vestibule. * * * I was pulling my right foot in" when she felt "something" strike her ankle and the car start up. She further testified that she was "leaning forward" with her body "inside the vestibule" when she was dragging her right foot onto the platform.

"Q. In relation to the line of the doors of the car, where was your body at the time you felt this blow or this striking? A. Inside the vestibule.

"Q. Well could you describe that to the jury in plainer language perhaps than I have been able to use, Miss Colgan, the operation of your getting into the car? A. Well I was, my body was in the vestibule and I was about to drag my right foot in to place it on the vestibule."

We will consider later the effect of this testimony on the defendant's abovementioned contention.

Except as hereinafter indicated, we need not refer to the testimony of the following witnesses, unless pertinent, as it is essentially the same as their testimony in the first trial and is substantially set forth in our previous opinion in this case, reference to which has already been made. These witnesses are Evelyn Pomfret, the plaintiff's companion; Robert J. Murray, the operator of the car; Ralph F. Banks, the only passenger in the car at the time of the accident'; Robert L. Chilton, the foreman of defendant's repair shop; and Walter L. Anthony, an engineer called by the defendant.

The defendant claims that it does not know how the accident happened. In denying liability, it relies on two main points: First, the testimony of the operator that, when he started the car, the doors were completely closed, with the plaintiff standing close to him on the platform of the vestibule; and, second, the testimony of its operator, foreman and engineer to the effect that the power necessary to start car number 2182, which was the car involved in this accident, could not be applied unless the doors were completely or almost completely closed. The inference sought to be established by the testimony on the second point is that it would be impossible to establish the electric...