Floyd v. Turgeon, 8410.

Decision Date16 July 1942
Docket NumberNo. 8410.,8410.
Citation27 A.2d 330
PartiesFLOYD v. TURGEON.
CourtRhode Island Supreme Court

[Copyrighted material omitted.]

Exceptions from Superior Court, Providence and Bristol Counties; Alberic R. Archambault, Judge.

Action of trespass on the case by John T. Floyd against Evangeliste Turgeon for injuries sustained by the plaintiff in a fall allegedly resulting from defendant's negligence in removing a fire escape and failing to barricade door which opened to it or to post warning that it had been removed. Verdict was for plaintiff and on defendant's motion for new trial the verdict was approved on condition that plaintiff remit a certain amount. On exceptions brought by both parties.

Defendant's exceptions overruled and plaintiff's exception sustained, and case remitted to the superior court for new trial unless plaintiff should file a remittitur of certain amount, and, if remittitur should be filed, judgment to be entered for plaintiff on the verdict as reduced by remittitur.

William S. Flynn and Christopher J. Brennan, both of Providence, for plaintiff.

Hoyt W. Lark and Hart, Gainer & Carr, all of Providence, for defendant.

CONDON, Justice.

This action of trespass on the case for negligence was tried to a jury in the superior court and there was a verdict for the plaintiff for $30,000. On defendant's motion for a new trial, the trial justice approved the verdict on condition that the plaintiff would remit all of the damages in excess of $16,500. Plaintiff declined to do so and excepted to the ruling. Defendant also excepted because the ruling did not order a new trial unconditionally. The case is here on bills of exceptions brought by both parties.

The defendant's bill contains numerous other exceptions which he took during the trial. We shall consider these before taking up his exception to the order for a new trial. That exception and plaintiff's exception will thereafter be considered together.

The plaintiff's cause of action arose out of an accident which happened to him while performing his duties as a night watchman on premises of his employer, the Paragon Worsted Company, in the city of Providence, on Sunday, October 1, 1939, at about 8 p. m. Sometime during that day the defendant's servants removed an outside metal stairway or fire escape from the doorway on the second floor of a mill building on said premises, known as the M. & F. building. The defendant was an independent contractor who had contracted with the Paragon Worsted Company, hereinafter referred to as the company, to build an addition to its M. & F. building. It was in the course of the performance of this contract that it became necessary to remove the metal stairway or fire escape. After removing it, defendant's servants failed to barricade the doors which opened on to it or to post any warning that it had been removed.

Plaintiff used this stairway or fire escape regularly on Sundays in making his rounds of the M. & F. building. He had been instructed to do so when he was first employed as a night watchman by the company. He had no knowledge that the defendant was going to remove the stairway; he was not told that it would become necessary for the defendant to remove it; and he did not know, on Sunday, October 1, 1939, that it had been removed.

On that day he reported for work at 6 p.m., his regular hour. Shortly thereafter he made his first rounds of the premises, but, because it was raining heavily, he did not use the metal stairway or fire escape. Instead he walked to the other end of the building and went down the inside stairway. However, on his second round, at 8 p.m., it was raining lightly so he decided to follow his usual custom of leaving the M. & F. building by way of the metal stairway or fire escape. The interior of the second floor was "pitch dark". The shades on the windows were all drawn and there was no power in the building. Plaintiff carried a type of kerosene lantern, customarily used by railroad men, which illuminated the darkness for a distance of about two feet.

With his lantern in one hand, plaintiff with the other hand opened the door to the metal stairway or fire escape. There were double doors at this doorway, one was held by a bolt which fitted into a hole in the floor and was not opened; the other door was held by a spring catch at the top, to which a chain was attached. When this chain was pulled, the catch was released from a socket and the door opened outward onto the platform of the metal stairway or fire escape, which was almost level with the threshold of the doorway. When the plaintiff opened this door, he stepped out, as he thought, upon that platform, but, there being none, he plunged about twenty feet to the ground and was severely injured.

On this evidence, defendant moved for a directed verdict which was denied. He excepted to this ruling and this exception is numbered 56 in his bill. In support of this exception, he contends that there is no evidence of any negligence on his part and that the plaintiff was guilty of contributory negligence as a matter of law.

Under the first ground, the defendant argues that since he could not reasonably be expected to know that the metal stairway or fire escape might be used for other purposes, he cannot be charged with knowledge of danger to the plaintiff. This argument is unsound. It is predicated upon the view that such a means of egress, as this metal stairway or fire escape, is as a matter of law intended for but one purpose, namely, escape from the building in the event of fire. Such a view is erroneous. This particular fire escape or metal stairway led from a doorway on the second floor of the building down to the ground and was affixed thereto. If anything, its position indicated it could be used for other purposes. As a matter of fact, it was regularly so used by this plaintiff, in accordance with instructions which he had received from his employer. It also appeared from the evidence that two other persons, who had been employed as night watchmen on the premises, also used the metal stairway or fire escape in the same manner as the plaintiff. Whether or not the defendant, under the circumstances, ought to have done something to warn persons lawfully upon the premises that there was danger beyond the doorway by reason of his removal of the metal stairway or fire escape therefrom, was a question of fact for the jury.

Defendant cited the following cases as authority for his contention: Kimatian v. New England Tel. & Tel. Co., 49 R.I. 146, 141 A. 331; Wojtyna v. Bazar Brothers & Co., 47 R.I. 221, 132 A. 384; Carey v. Baxter, 201 Mass. 522, 87 N.E. 901, and Landers v. Brooks, 258 Mass. 1, 154 N.E. 265, 49 A.L.R. 562. Neither of our cases is in point on the facts in the case at bar. We have examined the Massachusetts cases and we do not find that they support the broad proposition advanced by the defendant. The Carey case presented facts which led the court to find that the defendant clearly could not have supposed that the plaintiff was ignorant of the danger of which she later complained, and, therefore, he was not bound to warn her of it or otherwise to exercise special care to protect her from it. The Landers case, besides differing from the case at bar on its facts as to the location of the fire escape and the means of access to it from the building, was a case involving the obligation of a landlord to his tenant and therefore of questionable pertinency to the case at bar.

Defendant's other ground of his motion, that the plaintiff was guilty of contributory negligence as a matter of law, is clearly without merit. Whether or not in stepping out of the doorway as above set forth the plaintiff did all that an ordinary prudent man would have done under the circumstances was a question for the jury. Contributory negligence is usually a question of fact and only rarely a question of law. Where the facts are such that a person of ordinary prudence would instantly perceive what to do or what to refrain from doing, it may become a question of law for the court. Clarke v. Rhode Island Electric Lighting Co., 16 R.I. 463, 17 A. 59. We do not think that the facts here bring the plaintiff within that rule. Defendant has cited Zielinski v. Riley, 61 R.I. 14, 199 A. 693, and Coburn v. United Electric Rys. Co., R.I., 128 A. 435, and relies upon them in support of his contention that the plaintiff was guilty of contributory negligence as a matter of law. The cases do not help him in this respect. As a matter of fact the question of the plaintiff's contributory negligence in the Zielinski case was left to the jury and the Coburn case was cited therein only for its exposition and application of the doctrine of the last clear chance.

As a final or supplementary ground of his motion, defendant argues that the evidence shows that the act of a third party "supervened" and caused plaintiff's injury. Such act, as we understand his argument, was the knowledge of the president of the company and of its day watchman that the metal stairway or fire escape had been removed and their failure to communicate that knowledge to the plaintiff. Defendant cites Mahogany v. Ward, 16 R.I. 479, 17 A. 860, 27 Am.St.Rep. 753, in support of his position. The principle therein laid down and followed is well known. Briefly stated it is this: Where the negligence of a responsible third party intervenes between the original negligence of the defendant and the plaintiff's injury, the causal connection between the latter two may be broken and such act of the third party may be the proximate cause of the injury.

The facts in the Mahogany case illustrate the above principle and we think also indicate wherein the facts of the case at bar do not warrant the application of the principle to them. In that case a town was sued for negligence in permitting a post to remain so near the traveled portion of the highway that the plaintiff, while driving a carriage along the highway, was...

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    ...wrong, overlooked or misconceived material evidence, or applied an erroneous rule of law to the evidence. See Floyd v. Turgeon, 68 R.I. 218, 232, 27 A.2d 330, 337 (1942). Thus a trial justice, in reducing a verdict or conditioning the denial of a motion for new trial on a plaintiff's assent......
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