Kimatian v. New England Tel. & Tel. Co.

Decision Date04 April 1928
Docket NumberNos. 6402, 6403.,s. 6402, 6403.
PartiesKIMATIAN v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. (two cases).
CourtRhode Island Supreme Court

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

Actions by Mary Kimatian and Charles M. Kimatian, respectively, against the New England Telephone & Telegraph Company. Verdicts for plaintiffs, and to orders granting defendant's motions for new trials, plaintiffs bring exceptions. Exceptions overruled, and cases remitted for new trials.

William S. Plynn and Edmund W. Flynn, both of Providence, for plaintiffs.

Frederick W. O'Connell and Swan, Keeney & Smith, all of Providence, for defendant.

BARROWS, J. In these cases tried together plaintiff Mary recovered a verdict for $8,000, and plaintiff Charles, her husband, one for $1,500, against defendant. The basis of recovery was alleged negligence of Mr. Roberts, a servant of defendant, in leaving open a trapdoor in a dark back room of Charles' store, where the servant had been sent to relocate a certain telephone set. Into the opening fell plaintiff Mary, who claimed to be entirely ignorant of the existence of the trapdoor. At the time she was working for her husband, who was present in the store. He did not see her fall. Her recovery was for personal injury; his, for loss of her services.

On defendant's motion for a new trial the superior court said the weight of credible testimony was with defendant, whose only witness was its servant, that substantial justice had not been done, and granted defendant's motion in each case. Plaintiff claims error in the trial court's action in granting the motions for new trials.

On the evidence, unless something about plaintiff Mary's manner indicated that she was not truthful, she was not guilty of contributory negligence. The open trapdoor created an unobservable hole in a dark room dangerous to Mrs. Kimatian, who was entitled to enter said room, who did not know even of the existence of the trapdoor, and, if knowing thereof, had no reason to know that it was open. A storekeeper's duty to an invitee to the store was stated in Langleyv. Woolworth, 47 R. I. 165, 131 A. 194. That the storekeeper may be liable does not absolve from liability an independent contractor whose negligence creates the dangerous situation. Frenchv. Boston Coal Co., 195 Mass. 334, 81 N. E. 265, 11 L. R. A. (N. S.) 993, 122 Am. St. Rep. 257; Wakefieldv. Boston Coal Co., 197 Mass. 527, 83 N. E. 1116; Scott v. Curtis, 195 N. Y. 424, 88 N. E. 794, 40 L. R. A. (N. S.) 1147, 133 Am. St. Rep. 811; Donnelly v. Hufschmidt, 79 Cal. 74, 21 P. 546; Moll, Independent Contractors and Employers Liability, p. 334; 14 R. C. L. 105, title "Independent Contractors," § 41. On this principle was based plaintiff Mary's suit against defendant, the negligence of whose employee was asserted to be the cause of her injury. If Roberts negligently left the trapdoor open and unguarded while doing the work which defendant company sent him to do and the manner of doing which was within his sole control, the company was liable to Mrs. Kimatian. Labatt, Master and Servant, vol. 6, p. 7072; Lannen v. Albany Gaslight Co., 44 N. Y. 459. That the trapdoor was in Kimatian's store did not affect Mrs. Kimatian's suit. Her husband's negligence, if established, could not be attributed to her. O'Donnell v. United El. Ry. Co., 48 R. I. 18, 134 Atl. 642. Whether it could defeat his recovery for loss of his wife's services is a totally different question; it does not follow that the husband has a right of recovery because his wife may have one. Donahue v. Titus Co. (R. I.) 93 A. 644 (jury found against husband after another jury had found in favor of wife); Brierly v. Union R. R. Co., 26 R. I. 119, 58 A. 451 (husband may recover though another jury had found against wife); Laskowski v. People's Ice Co., 203 Mich. 186, 168 N. W. 940, 2 A. L. R. 586.

The one common and vital question in both suits before us was not whether Kimatian knew Roberts had gone to the cellar a second time, but whether Roberts did anything which a prudent and reasonable man would not have done or failed to do anything which a prudent and reasonable man would have done in performing the work which defendant sent him to do. Unless he was remiss the defendant company was not negligent. Roberts did not claim that he asked Kimatian or that Kimatian agreed to guard the opening. Roberts' testimony was merely that he supposed Kimatian would do so the second time as he had done the first time. One question for the jury, therefore, was whether Roberts reasonably might have anticipated that Kimatian would protect the opening from becoming a source of danger to persons rightfully entering the back room. Another was whether Roberts had any reason...

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10 cases
  • Smith v. August A. Busch Co. of Mass.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 5, 1953
    ...Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1081; Linesweaver v. Wanamaker, 299 Pa. 45, 149 A. 91; Kimation v. New England Telephone & Telegraph Co. 49, R.I. 146, 141 A. 331; Prosser, Torts, page 486; Harper, Torts, § 292; Restatement: Torts, § In addition to the exceptions claimed by ......
  • Pastorelli v. Associated Engineers, Inc.
    • United States
    • U.S. District Court — District of Rhode Island
    • July 10, 1959
    ...in tort to persons other than the contractee. See Floyd v. Turgeon, 1942, 68 R.I. 218, 27 A.2d 330; Kimatian v. New England Telephone & Telegraph Co., 1928, 49 R.I. 146, 141 A. 331. And in Oliver v. Pettaconsett Construction Co., supra, the Supreme Court, in remanding the case for a new tri......
  • Herstein v. Kemker
    • United States
    • Tennessee Court of Appeals
    • January 10, 1936
    ...not maintain a joint action for malicious prosecution. No question of joint trial of separate actions was involved. In Kimatian v. New England Tel. & Tel. Co., supra, Mary sued for personal injuries resulting from alleged negligence of the defendant; and her husband, Charles, sued for loss ......
  • Hayes v. New Britain Gas Light Co.
    • United States
    • Connecticut Supreme Court
    • May 14, 1936
    ... ... the court in Kimatian v. New England Telephone & ... Telegraph Co., 49 R.I. 146, 141 A. 331, ... ...
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