Corcione v. Ruggieri

• Decision Date: 12 March 1958
• Docket Number: No. 9854,9854
• Citation: 139 A.2d 388,87 R.I. 182
• Parties: Marla CORCIONE v. Ralph J. RUGGIERI et al. Ex.
• Court: Rhode Island Supreme Court

Page 388

139 A.2d 388

87 R.I. 182

Marla CORCIONE v.Ralph J. RUGGIERI et al.

Ex. No. 9854.

Supreme Court of Rhode Island.

March 12, 1958.

Fergus J. McOsker, Providence, for plaintiff.

Boss, Conlan, Keenan, Bulman & Rice, John T. Keenan, Providence, for defendants.

PAOLINO, Justice.

This is an action of trespass on the case for negligence to recover damages for personal injuries sustained by the plaintiff as a result of a fall in an alleged hole or depression on premises occupied by her daughter as a tenant of the defendants.The case was tried before a justice of the superior court sitting with a jury.At the conclusion of all the evidence the defendants moved for a directed verdict.The case is before us on the plaintiff's single exception to the granting of such motion by the trial justice.

The declaration consists of two counts which are similar in all respects except as to the allegations specifying the breach of defendants' alleged duty.In the first count they are charged with the breach of an alleged duty to exercise reasonable care in the laying out and care of the premises in question in that they allowed a dangerous condition to exist thereon, namely, a hole concealed by a growth of grass.In the second count the breach charged is in substance a violation of said duty in that they allowed the existence of an overgrowth of grass which concealed the hole described in both counts of the declaration.

On June 26, 1954, plaintiff was injured by a fall while walking across the lawn of premises hired by plaintiff's daughter from defendants sometime prior to the date of such accident.

It appears from the evidence that on May 20, 1954plaintiff's daughter, whom we shall refer to herein as the tenant, visited the premises, a summer cottage in the city of Warwick, together with one of defendants; that she looked over the grounds but did not go to the spot where her mother fell; that she inspected the house inside and out; that she agreed to rent the property from June 15 to September 15, 1954 for $600 on which a deposit of $25 was paid on May 20, 1954; and that the balance of $575 was paid on June 16, 1954 at which time, according to the tenant, the defendants turned over the keys to her and a receipt for the full rental of $600.

The tenant testified that on June 20, 1954she again visited the premises with her family and her mother, the plaintiff in the instant case; that they had a picnic and were on the premises for about one hour and a half but did not cross the lawn; and that they sat on the beach in front of the house during the time they were there.

The premises consist of a garage, which is located at the street line, and a house which is set back therefrom facing the street and the rear of the garage.To the right of the garage as one faces the house is a path which leads to the waterfront and to the left of the garage as one faces the house there were long pieces of timber set on the ground at the lot line to protect the newly seeded lawn from automobiles driving upon it.

The tenant testified that the condition of the grass had been discussed by her with one of defendants who told her that he would cut the first grass; that after that it was up to her son to cut it; that he would leave the lawn mower in the garage; and that this conversation took place on June 16, 1954 at defendants' place of business when she paid the balance of the rental and received the keys and receipt from one of defendants.In answer to the following question by defendants' counsel: '* * * you do not know the height of the grass on June 16th, 1954 because you did not go to the property?'she replied: 'I did not go to the property on June 16th.'She also testified that she did not know the height of the grass on that date.

It appears from the evidence, as has already been noted, that the tenant was on the premises on June 20, 1954 for about one and one-half hours with her family.She further testified that although she did not pay any particular attention to the height of the grass on that visit, it was 'high enough so that when we finally did cut it two or three days after the accident my son couldn't cut it with a lawn mower and we had to use one of those sod cutters.'

On June 26, 1954 the tenant went to the premises, together with other members of her family including plaintiff, for the purpose of occupying the same for the summer season.It was between 3 and 4 p. m. After getting out of the car plaintiff, who was seventy-four years old, walked across the lawn accompanied by one of her daughters who was walking along arm in arm with her.When they were in the middle of the yard plaintiff fell and in falling pulled her daughter to the ground.

The testimony of the tenant, who was following her mother, and plaintiff's other witnesses was in substance that immediately after the accident they noticed that at the point where plaintiff fell there was a hole about four or five inches deep, about twenty inches long and twelve inches wide, which was overgrown by grass; that it was a big hole, 'like a big rock came out of it, just as big as a watermelon could fit in'; that it was 'big as though a big boulder had been removed out of it and hadn't been filled up'; and that this hole was observed after the accident but was not observable prior thereto because of the height of the grass.There was also testimony describing the grass on the day of the accident as being very high, 'seven or eight inches or maybe even more'; and that it was quite high, looked all level, and gave no appearance of anything unusual.The testimony also shows that the hole was first seen by plaintiff's witnesses when they tried to get her up and that at that time her feet were in the alleged hole.

The testimony of defendants is in direct conflict with that of the plaintiff.They deny the existence on their lawn of the hole in question.One of their witnesses, an employee of defendants, testified that he had top-dressed, seeded and rolled the lawn during the month of March 1954; that after the grass started to grow he cut it every Sunday or Monday until the end of June; that thereafter if defendants rented the house it was up to the tenant to take care of it; and that there never was such a hole in the lawn as long as he took care of the place.The defendant, Ralph J. Ruggieri, testified that the grass was last cut on June 13, 1954, and that on the day he gave the keys to the tenant he told her: 'After the 15th of the month everything here is left to you, you cut the grass.'

On this record the trial justice granted defendants' motion for a directed verdict on the...