Lanca v. Cent. Eng'g & Constr. Co.
| Decision Date | 08 June 1949 |
| Docket Number | No. 8943.,8943. |
| Citation | 66 A.2d 638 |
| Court | Rhode Island Supreme Court |
| Parties | LANCA v. CENTRAL ENGINEERING & CONSTRUCTION CO. |
OPINION TEXT STARTS HERE
Exception from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Presiding Judge.
Action of trespass on the case for negligence by Antonio Lanca against the Central Engineering and Construction Company. The superior court sustained the defendant's demurrer to the declaration, and the plaintiff brings an exception.
Exception sustained, and case remitted for further proceedings.
Stephen A. Fanning, Cumberland, for plaintiff.
Swan, Keeney & Smith, Francis B. Keeney, Jr., Frederick W. O'Connell, Providence, for defendant.
This is an action of trespass on the case for negligence in which the superior court sustained the defendant's demurrer to the declaration. The case is before us solely on the plaintiff's exception to that ruling.
The declaration is in three counts. The first count alleges in substance that on a day certain the defendant, a corporation, was engaged upon the reparation of a building located in the town of Cumberland in this state at the junction of two specified streets; that one of such streets had for many years been a public highway; that the land upon which the building stood abutted on such highway for more than 100 feet; that on the day in question the defendant ‘did obstruct said highway in an unreasonable manner by erecting and maintaining barriers * * * which said barriers completely obstructed the southerly sidewalk of said John street for said distance of more than Eighty (80') feet westerly from Broad Street and closed said sidewalk to use by pedestrians'; that the plaintiff while walking easterly on said sidewalk came upon the barrier, and in order to reach Broad street he was, by reason of such barrier, obliged to walk between curbs in the roadway which at that time and place was in a condition dangerous for use by pedestrians because it was covered for a great distance by slippery, uneven ice; and that the plaintiff while traveling in the roadway in the exercise of due care slipped on the ice, fell, and sustained the injuries for which he seeks damages.
The second and third counts are similar to the first count except that the second alleges that the defendant ‘had obstructed said highway for an unreasonable length of time, to-wit, Three (3) months'; and the third count alleges that the defendant ‘did unnecessarily obstruct said highway by erecting and maintaining barriers * * *.’
The defendant's demurrer contains ten grounds but in our opinion it is not necessary to set them out verbatim. In substance the defendant complains that it does not appear from the declaration that the defendant was guilty of any negligence toward the plaintiff or owed him any legal duty; that it does not appear in what respect its actions were unreasonable or unnecessary; that the allegations in that connection are conclusions of law; that the alleged negligence or unlawful acts were not the proximate cause of the plaintiff's injuries; that it does not appear that the alleged existing conditions were not obvious and known to the plaintiff; that it appears that he assumed the risk of possible injury from walking in the roadway; and that the counts of the declaration do not state a cause of action and are vague and insufficient in law.
We have considered all the grounds in ...
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Senn v. Kogut
...so that she can properly prepare her defense. We are not satisfied that such contention is correct. In Lanca v. Central Engineering & Construction Co., 75 R.I. 365, 66 A.2d 638, this court upheld the overruling of a demurrer to a somewhat similar allegation that defendant had unreasonably a......