Cunningham v. Walsh
| Decision Date | 01 December 1932 |
| Docket Number | Nos. 7146, 7147.,s. 7146, 7147. |
| Citation | 163 A. 223 |
| Parties | CUNNINGHAM v. WALSH (two cases). |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.
Separate actions by Marie Cunningham and by George Cunningham against Richard S. Walsh. Verdicts for plaintiffs, and defendant brings exceptions.
Exceptions overruled, and each case remitted, with directions.
Fergus J. McOsker, of Providence, for plaintiffs.
Henry M. Boss, Jr., of Providence, for defendant.
These are actions for negligence, brought by a husband and his wife to recover damages for personal injuries and loss of services resulting from an accident in which Marie Cunningham was injured by an automobile truck owned by defendant and operated by his servant.
The actions were tried together, resulted in verdicts for the plaintiffs, and are now in this court on defendant's bills of exceptions. The exceptions are to the refusal to direct a verdict, to grant a new trial, and to a part of the charge to the jury.
The accident occurred in Providence on Hartford avenue near the corner of Matson street about 9:30 a. m., July 25, 1930. Hartford avenue runs east and west; in the center of the street is a single line of trolley tracks, on either side of which is a space for the passage of vehicles.
Plaintiffs live on Ponagansett avenue, which runs northerly from Hartford avenue. The next street easterly and a short block distant is Matson street, which runs northerly from Hartford avenue. On the south side of Hartford avenue opposite the corner of Matson street is a white post, a mark for a trolley car stop.
Mrs. Cunningham, hereinafter called the plaintiff, testified that, as she was walking down Ponagansett avenue intending to take a trolley car to go to her work in Providence, a trolley car running easterly passed her at the junction of Hartford avenue; that the motorman of this one-man car motioned to her to go to the white post at the corner of Matson street; that she walked rapidly on the north sidewalk of Hartford avenue until she came to a point nearly opposite the front of the car which had stopped at the white post; that she then, after looking to the east but not to the west, left the sidewalk and walked in a diagonal direction onto the trolley track in front of the car; that she walked across the track and, as she left the track to enter the front door of the car, she was struck and knocked down by what she later discovered was defendant's automobile truck; that she did not see the truck until after she was knocked down. As she fell on the street, the lower part of her body was between the left front and rear wheels of the truck, and the upper part was on the car track. Her external injuries were on the right leg and the right side of the pelvis.
At the time of the accident two women who were intending to enter the trolley car were waiting at the white post. These women testified that the plaintiff ran across Hartford avenue at the rear of the trolley car; that the truck was proceeding easterly behind the trolley car on the south side of the street near the curbing; and that plaintiff ran into the side of the truck. The driver of the truck testified substantially to the same effect, and also that he did not see the plaintiff until after she was knocked down. The testimony of these witnesses for the defendant was discredited by the proof of contradictory statements made by each to a police captain immediately after the accident. The motorman was not a witness, as he could not be found at the time of the trial.
Considering plaintiff's version of the accident, the only substantial question is whether she was guilty of contributory negligence as a matter of law. It is the duty of a pedestrian to look both ways before leaving a sidewalk and walking into the street. Beerman v. Union R. Co., 24 R. I. 275, 52 A. 1090; McKean v. Barker (R. I.) 148 A. 599; Kalify v. Udin, 52 R, I. 191, 159 A. 644. Plaintiff looked in one direction only. If, when she left the sidewalk, she had been struck by a vehicle coming from the west—the direction in which she failed to look—she would have been guilty of contributory negligence as a matter of law. In the instant case there were no vehicles moving in either direction between the north sidewalk and the trolley car. Having reached a place of safety on the car track in front of the trolley car, the plaintiff was then bound to act in the light of the knowledge of existing conditions which she had or should have...
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...15 App.Div.2d 303, 223 N.Y.S.2d 389 (1962); Armstead v. Holbert, 146 W.Va. 582, 122 S.E.2d 43 (1961); Cunningham v. Walsh, 53 R.I. 23, 163 A. 223 (1932); Spagnola v. New Method Laundry Corp., 112 Conn. 399, 152 A. 403 (1930). Some cases which reject the theory of the growing majority involv......
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