Dufresne v. Theroux., 8534.
| Decision Date | 25 June 1943 |
| Docket Number | No. 8534.,8534. |
| Citation | 32 A.2d 609 |
| Parties | DUFRESNE v. THEROUX. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.
Trespass on the case for negligence by Walter Dufresne against Edouard Theroux, doing business as Theroux Brothers Trucking, to recover for injuries sustained when plaintiff was struck by a bale of wool which fell and knocked plaintiff from defendant's truck. To review an order granting defendant's motion for a nonsuit, plaintiff brings exceptions.
Exceptions overruled, and case remitted for entry of judgment.
John R. Higgins and Higgins & Silverstein, all of Woonsocket, for plaintiff.
Eugene L. Jalbert and Adonat J. Demers, both of Woonsocket, for defendant.
This is an action of trespass on the case for negligence. At the trial in the superior court the plaintiff was nonsuited and he has duly prosecuted his bill of exceptions to this court to have that ruling reviewed.
One of the grounds urged by the defendant in support of the granting by the trial justice of the motion for a nonsuit is that the plaintiff failed to prove any negligence on the part of the defendant. The plaintiff denies this.
The plaintiff's declaration is in two counts. In the first count he alleges, among other things, that on July 22, 1933, the defendant owned a certain motor truck which was under the care of Phillip Parenteau, his servant and agent, acting within the scope of his authority; that said truck on that date was loaded with bales of wool which were being delivered at a certain mill in Woonsocket in this state; that it was the duty of the defendant, through his servant and agent, to use reasonable care in unloading the bales of wool from the truck so as not to negligently injure the plaintiff who was then lawfully upon the truck with the defendant's consent; yet the defendant, through his servant and agent, disregarding his duty “negligently and without warning *** and without having proper control of said bales of wool, pulled a bale from the top of said truck, which bale rolled down and struck the plaintiff in the chest *** knocking him backward and causing him to fall from the truck to the ground”, thus inflicting the injuries complained of.
The first part of the second count is substantially similar to the corresponding part of the first count. The plaintiff then alleges in the second count that the defendant through his servant and agent “moved a bale from the top of the truck, which bale rolled down and struck the plaintiff in the chest *** knocking him backward and causing him to fall from the truck to the ground ***.” The plaintiff further alleges that in the ordinary instance no injury would have resulted to him unless from carelessness on the part of the defendant's servant and agent in the handling of said bale, and that “at the time of the injuries to him the possession and user of the said bale was in the sole control of the defendant's servant and agent *** and that the injurious occurrence happened irrespective of any unvoluntary action at the time by the plaintiff, and aside from the fact that such injuries do not ordinarily occur if due precautions are taken, the plaintiff has no further knowledge of the precise thing or things on the part of the defendant's agent or servant *** which caused the bale to fall upon him ***.”
We do not deem it necessary to discuss the exact status of the plaintiff in relation to his presence on the truck. For the purposes of this case we will assume, without deciding, that he was properly there. In his direct examination the plaintiff did not explain the accident. He merely testified that he was standing on the truck; that Parenteau and Ernest Theroux, a brother of the defendant, were handling the bales; that he saw Parenteau roll a bale off the truck; and that the witness turned to speak to Ernest Theroux and that is the last thing that he remembers. His next recollection was in the hospital.
In his cross-examination, however, the plaintiff described the happening of the accident, in substance, as follows. He stated that the so-called bales of wool were cardboard containers filled with tops of wool, and that he believed they weighed between 350 and 375 pounds apiece. He testified that he climbed onto the truck as it was being unloaded, but that he was not asked to help and did not do so; that he stood on the load close to the side of the truck and backed up against the...
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Wilkinson v. Vesey
...requirement that the plaintiff aver that he did not know what caused his injuries. This requirement first appeared in Dufresne v. Theroux, 69 R.I. 280, 32 A.2d 609 (1943), and was repeated again in Motte v. First National Stores, Inc., supra, and Lopes v. Narragansett Electric Co., 102 R.I.......
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Motte v. First Nat. Stores
...R.I. 355] 369, 33 A. 869; Cardin v. Lovett, 52 R.I. 78, 157 A. 423; Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720; Dufresne v. Theroux, 69 R.I. 280, 284, 32 A.2d 609. See also King v. Wiesel, 67 R.I. 182, 188, 21 A.2d In our judgment the doctrine is applicable in the instant case. Here th......
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...to prove specific negligence, plaintiff waived the benefit of the sole control doctrine. He refers our attention to Dufresne v. Theroux, 69 R.I. 280, 32 A.2d 609, and Burdick v. South County Public Service Co., 54 R.I. 310, 172 A. 893. These cases are clearly distinguishable, however, from ......
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