Collins v. Palmer
| Decision Date | 22 May 1944 |
| Docket Number | No. 8526.,8526. |
| Citation | 37 A.2d 658 |
| Parties | COLLINS v. PALMER et al. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Washington County; Alberic A. Archambault, Judge.
Action of trespass on the case for negligence by Helen E. Collins against Howard W. Palmer and others, as trustees of the New York, New Haven & Hartford Railroad Company, for injuries sustained by plaintiff while alighting from a railroad train. The court denied defendants' motion for a directed verdict and nonsuited the plaintiff, and defendants bring exception.
Exception sustained.
Tillinghast, Morrissey & Flynn and M. Walter Flynn, Jr., all of Providence, for plaintiff.
William E. Boyle and William J. Carlos, both of Providence, for defendants.
This is an action of trespass on the case for negligence brought against the defendants as trustees of the New York, New Haven & Hartford Railroad Company. The case is now before this court solely on the defendants' exception to the action of the trial justice in the superior court in denying their motion, made at the conclusion of all the evidence, that a verdict be directed in their favor.
It appears from the evidence that the plaintiff was injured August 23, 1941, when she fell, while alighting from a railroad train operated by the defendants as it was standing in the station at Westerly in this state. In her declaration she set out that the accident happened in the following manner: “ * * * and while the plaintiff * * * was then and there about to alight therefrom, the said defendants, their agents and servants, carelessly and negligently caused an article of baggage, to wit, a suitcase, to be placed upon and in the vestibule of the car from which the said plaintiff was then and there about to alight from said train, so that the said plaintiff * * * struck and tripped against and over said article of baggage, and the said plaintiff was then and there thrown * * * upon the steps of the car of said train * * *.”
The defendants' motion for a directed verdict in their favor was made on the ground that there was a material variance between the allegation of the defendants' negligence, as made in the plaintiff's declaration, and the proof submitted by her in support thereof. Such a variance, if established, is sufficient to prevent the plaintiff from sustaining her action. In Shea v. First National Stores, Inc., 63 R.I. 85, at page 87, 7 A.2d 196, at page 197, it was held: “The general rule is that if the plaintiff alleges in the declaration negligence in certain particulars as the sole foundation of the action, negligence in these particulars must be proven to sustain the action.”
The plaintiff herself was her only witness on the question of how the accident happened. Her testimony in that connection was confused and indefinite. In any event, whether we construe the allegation of the declaration, that the defendants, by their agents and servants, “caused * * * a suitcase, to be placed * * * in the vestibule of the car”, as meaning that the defendants placed or directed the suitcase to be placed in the vestibule, or that they permitted it to be so placed, the proof is at variance therewith. It is clear from the plaintiff's own testimony that no suitcase was actually placed in the vestibule of the car by or at the direction of the defendants' agents and servants, and none was permitted by them to be so placed; and further that the plaintiff did not strike and trip against and over any suitcase while placed as...
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Cofone v. Narragansett Racing Ass'n
...defendant urges probably would have been of assistance had this case been tried prior to the adoption of the new rules. Collins v. Palmer, 70 R.I. 143, 37 A.2d 658; Shea v. First National Stores, Inc., 63 R.I. 85, 7 A.2d 196; Sarcione v. Outlet Co., 53 R.I. 76, 163 A. 741; St. John v. Rhode......
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Tetreault v. Duchesne., 8701.
...v. American Locomotive Works, 31 R.I. 166, 170, 76 A. 435; Shea v. First National Stores, Inc., 63 R.I. 85, 7 A.2d 196; Collins v. Palmer, 70 R.I. 143, 37 A.2d 658. In our opinion the evidence does not support the particular negligence alleged in the declaration. Neither the testimony of th......
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Habershaw v. Palfrey .
...should be sustained on the authority of Cranston Print Works Co. v. American Tel. & Tel. Co., 43 R.I. 88, 110 A. 419, and Collins v. Palmer, 70 R.I. 143, 37 A.2d 658. In the former of these cases this court, 43 R.I. at page 93, 110 A. at page 422, said: ‘If there is no legal evidence to sup......