Gorman v. Hand Brewing Co.

• Decision Date: 25 February 1907
• Citation: 66 A. 209,28 R.I. 180
• Parties: GORMAN v. HAND BREWING CO.
• Court: Rhode Island Supreme Court

66 A. 209

28 R.I. 180

GORMAN

v. HAND BREWING CO.

Supreme Court of Rhode Island.

Feb. 25, 1907.

Exceptions from Superior Court.

Trespass on the case for negligence by Julia Gorman against the Hand Brewing Company. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled, except on question of damages.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Lewis A. Waterman and John J. Fitzgerald, for defendant.

DUBOIS, J. This is an action of trespass on the case for negligence, brought, under the statute, by the widow of Jeremiah Gorman, to recover damages for the death of her husband, which, she alleges, was caused by the wrongful act, default, or neglect of the defendant.

It appears that the plaintiffs husband, a strong, healthy man of the age of 32 years, a driver in the employ of the defendant, while properly driving a pair of horses harnessed to a loaded wagon, in the course of his employment, on the 29th day of March, 1904, received the injuries which caused his death by being thrown from the driver's seat of the wagon to the ground, while the horses were running away with the wagon pole, which had become broken and detached from the wagon, and which had probably struck and frightened the horses and caused them to run away. After verdict for the plaintiff in the superior court the defendant duly made a motion for a new trial for the reasons hereinafter stated which motion was denied by said superior court, and the cause was brought to this court and heard upon the defendant's bill of exceptions based upon the following grounds: That the verdict is against the law; that the verdict is against the evidence; that the damages awarded by the jury in said cause are grossly excessive and unjust; that the defendant has discovered new and material evidence in said cause, which it had not discovered at the time of the trial thereof, and which it could not have discovered at said time by the exercise of reasonable care; that the judge who presided at the trial of said case erred in certain of his rulings, to which exceptions were duly allowed, and that the counsel for the plaintiff made a statement in the nature of testimony, to which exception was duly allowed. The verdict is not against the law. Under the instructions given to the jury, which constituted the law governing them in the case, the jury was at liberty to find either for the defendant or for the plaintiff, according to the preponderance of the evidence as weighed by them. There is nothing in the verdict to indicate that the jury disregarded the instructions of the court.

1. The verdict is not against the evidence. The testimony for the plaintiff tended to prove that the breaking of the pole, which resulted in the injury and subsequent death of her husband, was caused by imperfect welding of the iron by which the pole was attached to the wagon, and that the work was done by the servants of the defendant in its blacksmith shop, and that the pole was made and fitted for said wagon by servants of the defendant. As poles do not usually become detached from wagons while in ordinary use through breaks of that character and cause, and as the pole and wagon was an apparatus wholly under the control of the defendant, the mere fact that it did so break apart from the wagon is inferentially evidence of negligence on the part of the defendant. The plaintiff having thus presented a prima facie case, the burden was cast upon the defendant to rebut the presumption to the satisfaction of the jury. The defendant offered evidence, by two witnesses, another driver and a helper in the employ of the defendant, who, in another wagon preceded the wagon driven by the plaintiff's husband, that prior to the time of, and about a mile and a half away from the place of, the fatal accident, the off side of the half-circle (so-called) that connected the pole with the axle of the wagon gave way, and that at the request of Gorman they went back to his wagon and assisted him to make temporary repairs by strapping the half-circle of the pole to the axle of the wagon with three lazy straps taken from the harness of the horses driven by Gorman, two straps being used on the off side and one on the nigh side, and that they then proceeded on their journey without further incident until the final break occurred. No evidence was introduced tending to strengthen or rebut this testimony relative to such repairs, or to prove that the wagons were or were not stopped at such time and place, except that the manager of the defendant testified that after the accident Gorman told him about the previous break and the repairs that had been made, and another witness testified that after the accident he saw one strap hanging down...