Collette v. Page

• Decision Date: 01 July 1921
• Docket Number: No. 5450.,5450.
• Parties: COLLETTE v. PAGE.
• Court: Rhode Island Supreme Court

114 A. 136

COLLETTE

v. PAGE.

No. 5450.

Supreme Court of Rhode Island.

July 1, 1921.

Exceptions from Superior Court, Providence and Bristol Counties; Chester W. Barrows, Judge.

Action by John E. Collette against Earl G. Page, wherein demurrer to the amended declaration was sustained, and plaintiff excepts. Exception sustained, demurrer overruled, and case remitted for further proceeding.

William A. Gunning, of Providence, for plaintiff.

Gushing, Carroll & McCartin, of Providence, for defendant.

SWEENEY, J. This is an action of trespass on the case for negligence on account of a collision between the autombiles of the plaintiff and the defendant. Demurrer to the amended declaration was sustained by a justice of the superior court, and the plaintiff has brought the case to this court by his exception.

The declaration contains three counts, and the third one avers that the defendant was the keeper of a public garage, letting automobiles for public hire in said city; that he, or his servant, negligently rented or let an automobile to a person full well knowing, or by the exercise of reasonable care and diligence should have well known, that the same was in a bad, unsafe, and dangerous state of repair on account of some bolts being loose, which ordinarily made the radius rod of said automobile secure, so that, while it was being driven by said person on a public highway in said city, it became ungovernable and a menace to the safety of the public and ran into tbe automobile of the plaintiff, then being driven upon said highway and damaged it.

The facts are not fully set forth in the first and second counts, because it does not appear in either of them whether the defendant, his agent or a bailee, was operating the automobile at said time.

The defendant filed three grounds of demurrer to the declaration, claiming: (1) That the facts stated gave rise to no duty from the defendant to the plaintiff: (2) that an automobile is not an imminently dangerous article, and no privity of contract existed between the defendant and the plaintiff; and (3) that it is not alleged that the defendant actually knew of the defective condition of the automobile.

The demurrer was sustained under authority of the case of McCaffrey v. Mossberg Mfg. Co., 23 R, I. 381, 50 Atl. 651, 55 L. R. A. 822, 91 Am. St. Rep. 637, in which this court held that the maker of a machine, which he sold to another, is not liable to a third person for injuries received by him arising from negligence in the construction of the machine, because the machine was not imminently dangerous nor was its maker guilty of deceit or fraud in selling it having knowledge of its defect in so holding, the court said, on page 386 of 23 R. I., on page 652 of 50 Atl. (55 L. R. A. 822, 91 Am. St. Rep. 637):

"The third class of cases relating to the sale of a thing not in its nature dangerous rests on the principle that as to such things there is no general or public duty, but only a duty which arises from contract, out of which no duty arises to strangers to the contract."

In the case at bar the function of the radius rod is not alleged in either of the counts, but it was stated in argument that it is an important part of the steering gear of the automobile. The case has been argued upon the assumption that the defendant's automobile was in charge of an independent bailee.

This court has held that an automobile is not an instrumentality dangerous per se so as to make the owner liable for injuries resulting from the negligence of his servant while driving the automobile for his own pleasure, and not upon the owner's business (Colwell v. Ætna Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388); but it is obvious that it may become a dangerous instrumentality when driven upon a public highway in a reckless or negligent manner, or when it has inadequate brakes or its direction cannot be controlled by the steering gear; and it has been held that an automobile may be so out of repair as to be a dangerous instrumentality (Texas Co. v. Veloz [Tex. Civ. App.] 162 S. W. 377).

Trouble with the steering gear is a difficulty feared by every motorist, as it leaves him helpless, and, even though the automobile is traveling at a moderate speed, is likely to cause serious injury to the occupant of the automobile, to say nothing to those on the road. The Law Applied to Motor Vehicles, Babbitt, § 226.

In order to give some protection to persons using the public highways, safety appliances on motor...