Fagan v. Rhode Island Co.

• Decision Date: 15 March 1905
• Citation: 27 R.I. 51,60 A. 672
• Parties: FAGAN v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

60 A. 672

27 R.I. 51

FAGAN

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

March 15, 1905.

Action by Margaret Fagan against the Rhode Island Company. Heard on petition of defendant for a new trial, and Judgment rendered for defendant.

Argued before DOUGLAS, C. J., and DUBOIS, J.

David S. Baker and Lewis A. Waterman, for plaintiff. Henry W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant.

DOUGLAS, C. J. The plaintiff in this action has recovered a verdict for $1,130 for the loss of services of her minor son, who was injured while a passenger upon one of the defendant's electric cars upon the i road between Providence and Riverside. The defendant brings its petition for a new trial on the grounds that the verdict is against the evidence on the issue of the defendant's negligence and in the award of excessive damages, and that the presiding justice erred in admitting certain evidence against the defendant's objection. The plaintiff's son, a boy about 14 years of age, was riding in a closed car of the defendant corporation upon a country road about midnight on the night of September 8, 1903, on the way to Riverside. The track on which the car ran was located at the extreme westerly side of the road, outside of the ordinarily traveled way. The moon was shining, but its light upon the track was obstructed by overshadowing trees alongside the road. Shortly before the collision the motorman turned off the power and rang his gong, and immediately before the collision occurred he applied his brake and attempted to put sand upon the track. Almost instantly after the brakes were set the car struck a team of horses and came to a stop, with one horse under the front of the car and another lying dead in the road. The plaintiff's son, who was sitting in the front corner of the car with his head resting on his arm supported by the window ledge and sleeping, was thrown to the floor by the shock and injured. These are all the facts pertinent to the case which were known to any person in the car except the motorman. The conductor was standing inside the door, figuring his day card. One passenger says he got a glimpse of the team just before it was struck, and describes the situation after the collision; but he gives no information as to the cause of the accident. He says the gong was rung. Another passenger says: "The car stopped quite suddenly, and I heard the glass breaking and the woodwork was all splintered up; so I knew there was something the matter." The motorman's story is: That, proceeding at an ordinary rate of speed, he saw at some distance ahead, but in the traveled part of the road, a dark object, which soon appeared to be a pair of horses followed by a covered wagon. At this time he turned off the power and rang his gong, but saw no occasion to apply the brake, as the wagon and horses were clear of the track. That suddenly, when close to the car, the team turned in upon the track, and he at once used every means to stop, but without success. The car and the horses came together, and the horses were thrown down and the wagon overturned. He testifies as follows: "Q. Did you meet with an accident that night? A. I did, sir. Q. Whereabouts? A. Between Bay View and Pomham, right opposite the Golf Club ground. Q. At that point, on that night, how far could you see? A. Well, it was a moonlight night, but it was not extra light at the spot where I was. It was a very dark spot on the road. Q. Why was that a dark spot? A. It was right under the trees. Q. Did you have your lights lighted? A. Yes, sir. Q. Do you know where the track is at that point? A. I do, sir. Q. On which side of the road? A. It is on the right-hand side towards Crescent Park. Q. That is on the west side? A. On the west side, I think. Q. And it was on September 8th, on the same place? A. Yes, sir. * * * Q. Now, did you come in contact with anybody that night? A. At the time of the accident I struck a team. Q. What team was it—what sort of a team? A. Two horses, side by side; one hitched in the harness and the other leading right along side of it. Q. That is when you saw it? A. Yes, sir. Q. Then what did you see? A. Well, I see the team at a distance on the road, when I noticed a dark spot. I noticed a dark spot on the road and it was off the track; and there was no danger from me hitting it, and they suddenly turned right on the track, and I put on my brakes and done all I could to stop the car. Q. When did you first put your brake on? A. Just as soon as I noticed the horses made a beeline for the track. Q. You say at that time the horses were side by side? A. Yes, sir. Q. Was there any light upon the team? A. No, sir; not at all. Q. Relative to your ringing the bell, I will ask you what you did? A. I did ring the bell, and the parties inside of the car, I asked them, and they said 'Yes.' Mr. Baker: Never mind about that. Q. Just what you remember yourself, Mr. Belcher. When this team was upon the track in the manner that you have described, you say you did what to stop the car? A. I put on the brakes. Q. What else? A. I loosened the brake again, and pulled on the reverse, but the car slid just the same, and I threw the reverse off again and pulled the brake and made a grab for the sand. But at the same time I was thrown clear through the door. Q. When you made a grab for the sand you were thrown? A. Yes, sir. Q. What threw you? A. We struck the team, and that must have banged me through the door, sir. Q. Were you injured? A. Yes, I had a broken leg by it Q. Is that the trouble with you now? A. That is the trouble with me now." The driver of the wagon testifies that he had boon distributing bread in Bristol, having started from Providence at 5 o'clock in...