Healey v. Ward Baking Co.

• Decision Date: 18 January 1929
• Docket Number: Nos. 6583, 6584.,s. 6583, 6584.
• Citation: 144 A. 443
• Parties: HEALEY v. WARD BAKING CO. (two cases).
• Court: Rhode Island Supreme Court

144 A. 443

HEALEY

v. WARD BAKING CO. (two cases).

Nos. 6583, 6584.

Supreme Court of Rhode Island.

Jan. 18, 1929.

Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.

Actions by Bridget Healey and Andrew J. Healey, her husband, against the Ward Baking Company. Verdicts for plaintiffs, and defendant brings exceptions. Exceptions overruled, and cases remitted.

Thomas L. Carty, of Pawtucket, for plaintiffs.

Frederick A. Jones, of Providence, for defendant.

RATHBUN, J. These two plaintiffs are husband and wife. Bach brought an action of trespass on the case for negligence to recover for damages suffered arising from in">juries to the wife caused by a collision between one of the defendant's automobile trucks and an electric car operated by the United Electric Railways Company. The cases were tried together, and the jury returned a verdict for the wife for $3,500 and for the husband for $500. The trial justice denied the defendant's motion for a new trial in the wife's case, and filed a rescript granting defendant's motion for a new trial in the husband's case unless he should remit all of his verdict in excess of $132. The husband duly filed a remittitur, and the motion for a new trial in his case was denied. Each case is before us on the defendant's exceptions as follows: To the ruling of said justice denying the motion for the direction of a verdict in favor of the defendant; to the action of said justice in denying defendant's motion for a new trial; to the refusal to strike out testimony; to a ruling refusing to require a witness to disclose the names of passengers on said electric car at the time of the collision; to instructions to the jury and to the refusal to instruct as requested.

The collision occurred in the city of Pawtucket at the intersection of Pawtucket and Glenwood avenues. Pawtucket avenue runs north and south, and Glenwood avenue east and west. At the time of the accident the plaintiffs were passengers on an electric car which was proceeding north on Pawtucket avenue. The defendant's truck had been proceeding west on Glenwood avenue, and at the time of the collision was turning to the left into Pawtucket avenue. The upper right-hand corner of the front end of the truck collided with the right-hand side of the electric car, which was brought to a sudden stop almost immediately after the collision. The wife was thrown from her seat against the seat in front of her. She suffered other minor injuries, but the most serious injury was to her right knee, which she contends was permanently injured.

In her declaration the wife complained of injuries to her right knee. In her bill of particulars she termed the injury "a housemaid's knee," which is bursitis of the bursa in front of the kneecap. Drs. O'Brien and Mathewson testified that at the time they examined the wife and at the time of the trial she suffered chronic bursitis of the subpatella bursa, which bursa is just below and behind the kneecap.

Defendant contends that because of variance between the allegation in the bill of particulars apd proof the trial justice should have stricken out all testimony relative to the injured subpatella bursa. The declaration contains an allegation that the plaintiff was "greatly injured as to her right leg, particularly as to the kneecap thereof and the region surrounding the same." She evidently gave all the information available at the time when the bill of particulars was filed. When the inflammation subsided, it was discovered that the subpatella bursa was also injured. The bill of particulars calls attention to inflammation in front of the kneecap; that is, housemaid's knee. The doctors testified that at the time of the trial this inflammation had cleared up disclosing inflammation back of the kneecap called bursitis of the subpatella bursa. Before the trial defendant's doctors were permitted to examine the knee. It is apparent that they, before the trial, discovered the inflammation complained of at the trial because the defendant's attorney did not even claim to be surprised by the testimony of the plaintiffs* doctors. The declaration is broad enough to admit the evidence complained of. When the bill of particulars was filed, it gave the best information then available. The defendant therefore had no ground for complaint, especially as there was no surprise. The ruling refusing to strike out testimony was correct.

The defendant's fifth exception is to the refusal of the trial justice to compel ...