Gorski v. Consol. Rendering Co.

• Decision Date: 12 June 1918
• Docket Number: No. 5158.,5158.
• Citation: 41 R.I. 339,103 A. 907
• Parties: GORSKI v. CONSOLIDATED RENDERING CO.
• Court: Rhode Island Supreme Court

103 A. 907

41 R.I. 339

GORSKI

v. CONSOLIDATED RENDERING CO.

No. 5158.

Supreme Court of Rhode Island.

June 12, 1918.

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Stanislaus Gorski against the Consolidated Rendering Company.Verdict directed for defendant, and new trial denied plaintiff, and plaintiff excepts.Exceptions overruled, and case remitted, with direction to enter judgment for defendant upon the directed verdict.

Thomas L. Carty, of Pawtucket, for plaintiff.Gardner, Pirce & Thornley, of Providence (Charles R. Haslam and Benjamin M. McLyman, both of Providence, of counsel), for defendant.

PARKHURST, C. J.This is an action of trespass on the case for negligence brought by the father of Helena Gorski, a child about 2 years and 7 months old, to recover for the loss of her services during her minority and for burial expenses, it being alleged in the declaration that the defendant owned a dwelling house and land; that the plaintiff's child on the 18th day of April, 1917, was upon the land with the knowledge and consent and at the invitation of the defendant; that it was the duty of defendant to keep its premises in a reasonably safe condition so that the child might not be injured; that the defendant did not exercise due care, etc., but kept and maintained on the premises a large barrel or hogshead sunk in the ground for the purpose of retaining spring water, which was uncovered, and unguarded to the knowledge of defendant; that the child, while in the exercise of due care, stumbled and fell into the barrel and was drowned.

The case was tried January 23-24, 1918, before a judge of the superior court and a jury, and at the conclusion of the plaintiff's testimony, and after the plaintiff rested his case, the defendant also rested its case, and moved for the direction of a verdict in its behalf on the ground that the defendant was not, as a matter of law, liable for the death of the child.The motion was granted, and by direction of the court a verdict for the defendant was rendered by the jury.Thereafter plaintiff filed a motion for new trial which was denied, and thereafter filed its bill of exceptions, based upon the denial of its motion for a new trial and upon the direction of a verdict for the defendant.The case is before this court upon the bill of exceptions.

The exception based upon the denial of the motion for a new trial is not pressed before this court; the only exception argued being the one based upon the direction of a verdict for the defendant.

The facts disclosed upon the evidence are substantially as follows: The defendant on April 18, 1917, was, and for a long time had been, the owner of a three-tenement house situate upon a large lot of land fronting upon Mineral Spring avenue, a highway in the city of Pawtucket, R, I.The house was located about 100 feet back from and fronting toward Mineral Spring avenue.There were pathways leading across the lot from the street to the house, commonly used by the tenants to approach the entrances to the house.In front of the middle portion of the house, and immediately adjacent to the front wall thereof, was a depression or area about 10 or 12 feet square and 4 feet deep, with the wall of the house at the back and partly on two sides, with a red-painted picket fence about 3 1/2 feet high on the front of the area and on the remainder of the two sides.About in the center of this area was a barrel sunk into the ground so that only an inch or two of the rim extended above the surface.There was a natural spring, the waters from which were received in this barrel and flowed out of it over one side.The water in the barrel was about 2 feet deep.There was a gate in the front portion of the red picket fence, and from the gate leading down to the level of the spring were three wooden steps.It also appears that there was a piazza on the front of a part of the house, and that the end of the piazza adjoined the area of the spring and overlooked it, and was guarded on that end by a fence or railing.It also appears that the entrance to the tenement where the plaintiff lived as a boarder with John Urban, who hired and occupied one tenement in the house, passed over this piazza to the door of the house.

John Urban, a witness for the plaintiff, had hired a tenement on the second floor of this house, more than a year before April 18, 1917, and lived there up to the time of the accident with his family, consisting of a wife and three children.He also took boarders, and about three weeks before April 18, 1917, he took the plaintiff and his wife and two children as boarders, and they were living there as such at the time of the accident.It also appears that Mr. Urban had previously lived in a tenement on the first floor of the same house, and that he had full knowledge of the location and surroundings of the spring, and full opportunity to become acquainted with the same, although he says neither he nor his boarders had any occasion to use water therefrom as there was running water in the house.

It appears that on April 18, 1917, about half past 12 (noon), the plaintiff then being away at his work, his wife and her child Helena Gorski were having their dinner in the Urban kitchen; that the child left the table before her mother, and went out of the house; that a few moments thereafter there was an outcry from children in the front yard that Helena was in the spring; that another boarder, John Hawrilak, heard the outcry, and ran out and found the child head down in the spring, took her out of it; and that she could not be resuscitated, although efforts were made.It appears that she was drowned.At that time it appears that the gate in the fence in front of the spring was wide open.It also appears that the gate was not very secure; that one of the posts was loose; that the gate could be closed by moving the post; and that it had been in that condition at the time when Mr. Urban first lived in the house, and ever since up to the day of the accident.After the accident Mr. Urban nailed up the gate, but he never made any complaint to the landlord or its agent at any time before the accident, nor does it appear that any complaint was made in relation to the spring or gateway, after the accident, to the landlord or its agent, until some weeks later, when it appears that complaint was made that the water from the spring was leaking into the cellar.

Furthermore, it nowhere appears that the landlord at or before the letting of the tenement, or at any time, made any agreement to make any repairs, improvements, or changes, either to the house or to its surroundings.It nowhere clearly appears that at any time was the barrel covered or that any provision was made by any one for keeping it covered.It appears to have been open at the time of the letting, for the witness Hawrilak, who went to the house with Urban on the day when he hired the lower tenement, says:

"He was with me, but he was upstairs, and I was standing in the yard and looking at the water."

The time referred to was upwards of two years before the accident.At and from that time the evidence shows that Urban was fully charged with knowledge of the existence and condition of the spring, of the gate in the fence, and all the surroundings.

It nowhere appears that the landlord retained any control...