Horton v. Cray

• Decision Date: 01 July 1926
• Docket Number: No. 6180.,6180.
• Citation: 133 A. 811
• Parties: HORTON v. CRAY, City Treasurer.
• Court: Rhode Island Supreme Court

133 A. 811

HORTON

v. CRAY, City Treasurer.

No. 6180.

Supreme Court of Rhode Island.

July 1, 1926.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Trespass on the case by Ellen K. Horton against Clarence E. Cray, City Treasurer. Directed verdict for defendant, and plaintiff brings exceptions. Exceptions overruled, and case remitted for judgment on the verdict.

Littlefield, Otis & Knowles, of Providence, for plaintiff.

Elmer S. Chace, City Sol., and Herbert E. Eklund and Francis D. McManus, Asst. City Sols., all of Providence, for defendant.

PER CURIAM. This is an action of trespass on the case against the city treasurer of Providence to recover damages for personal injuries alleged to have been caused by the defective condition of the sidewalk on Franklin street in said city.

The case was tried before a justice of the superior court sitting with a jury. At the close of the evidence, on motion, the justice directed the jury to return a verdict for the defendant. The case is before us upon the plaintiff's exception to this action of the justice and upon another exception of the plaintiff to a ruling of the justice made in the course of the trial.

The declaration alleges, in substance, that the city permitted a hole or depression to exist in the sidewalk of Franklin street, and that the plaintiff, while traveling on that sidewalk, and in the exercise of due care, "stepped in said hole, and by reason thereof, slipped, and was thrown to the ground with great force and violence," and thereby suffered serious bodily injury.

It appeared in the plaintiff's testimony that just previous to the time of her injury it had snowed, and the sidewalk, at the place where the alleged injury occurred, was icy and slippery; that it was raining, and at about 11 o'clock at night she came to the place carrying an open umbrella. The plaintiff testified that "my left foot seemed to step on something that protruded a little, and then I went down, and it seemed as though it was a hole." On cross-examination she testified:

"This foot came in contact with something like a little lump, and went down under me, and I went right in a heap in this hollow. It was a hole."

The civil engineer who was called as a witness by the plaintiff testified that he examined the place where the plaintiff claims that she fell, and found the sidewalk to be an ordinary brick sidewalk; he found that in a portion of the walk there was a depression with...