Hermann v. R.I. Co.

• Decision Date: 25 June 1914
• Docket Number: Nos. 4687, 4688.,s. 4687, 4688.
• Citation: 36 R.I. 447,90 A. 813
• Parties: HERMANN v. RHODE ISLAND CO. (two cases).
• Court: Rhode Island Supreme Court

90 A. 813

36 R.I. 447

HERMANN

v. RHODE ISLAND CO. (two cases).

Nos. 4687, 4688.

Supreme Court of Rhode Island.

June 25, 1914.

Exceptions from Superior Court, Providence and Bristol Counties; Elmer J. Rathbun, Judge.

Separate actions by Ida Hermann and by Otto Hermann against the Rhode Island Company. Judgment for plaintiffs, and, to an order granting a new trial, they except. Exceptions sustained, and case remitted, with direction to enter judgment on the verdict.

John W. Hogan, Philip S. Knauer, Richard W. Jennings, and Jeremiah E. O'Connell, all of Providence, for plaintiffs. Joseph C. Sweeney, Eugene J. Phillips, and Clifford Whipple, all of Providence, for defendant.

SWEETLAND, J. Each of the above-entitled cases is an action of trespass on the case to recover damages alleged to have been sustained by reason of the negligence of the defendant's servants. Said cases were tried together before a justice of the superior court sitting with a jury. At said trial a verdict was rendered for the plaintiff Ida Hermann in the sum of $4,000, and for the plaintiff Otto Hermann in the sum of $500. In each case the justice presiding at the trial granted the defendant's motion for a new trial. The cases are before us upon the plaintiffs' exceptions to the action of the justice in granting the motions for new trial.

It appears from the transcript of evidence that on June 29, 1911, at about 8:30 p. m., the plaintiffs, who are husband and wife, were riding, as guests, in an automobile at that time owned and driven by one Carl Berghmann; that they had no authority or control over said Berghmann in regard to the operation of said automobile; that Mrs. Hermann was sitting on the front seat at the left of the driver, and Mr. Hermann was sitting behind, on a single seat, called a rumble seat; that the automobile turned from Hewes street into North Main street in the city of Providence, where the defendant operates its electric cars upon a single track located on the westerly side of North Main street, the nearest rail being about nine feet from the westerly curbstone of said street; that, in rounding the southwesterly corner of Hewes and North Main streets, the left forward wheel of the automobile ran between the rails of the car track, and before the automobile was clear of the track, on the westerly side of North Main street, the automobile was struck in front by one of the defendant's cars approaching from the south. As a result of this collision Mrs. Hermann claims that she suffered very severe physical injury upon which she bases her suit. Mr. Hermann claims that he was personally injured in the collision; he also seeks damages for loss of his wife's services due to her injuries received in the collision, and to recover for the money expended by him in medical attendance, nursing, and care of his wife, made necessary by said injuries.

The negligence of defendant alleged is that its motorman operated said cars in a careless manner, and at an excessive and dangerous rate of speed. According to the testimony of witnesses for the plaintiff, at the time said automobile had turned into North Main street, was proceeding in a general southerly direction, and was within the range of sight of the defendant's motorman, the defendant's car was so great a distance away that, if said car had been proceeding at a proper rate of speed, not exceeding the rate permitted by the ordinance of the city of Providence, the driver of the automobile would have been able to turn his machine out of said car track, and the collision would not have taken place. Said witnesses testified that the defendant's car was traveling at a very high rate of speed, far in excess of that prescribed by the ordinance; and, further, that there was ample space and opportunity, after the automobile had come into North Main street, for the defendant's motorman, if he had been traveling at a rate of speed, which would have been reasonable in the circumstances, to have checked the progress of his car and have prevented the accident. The plaintiffs claim that the driver of the automobile was justified in assuming that said motorman would proceed at a reasonable and legal rate of speed, and would so manage and control his car that it would not strike the automobile; and, further, that the driver of the automobile, acting on that assumption, was justified in driving upon the car track. The testimony of the plaintiffs' witnesses as to the excessive speed of defendant's car, and as to the distance between the two vehicles, was contradicted by the testimony of witnesses for the defendant. The evidence presented a fair question for the jury as to the negligence of the defendant. There was sufficient testimony to warrant the jury in...