Malfetano v. United Electric Rys. Co., s. 7696, 7697.

• Decision Date: 23 April 1937
• Docket Number: Nos. 7696, 7697.,s. 7696, 7697.
• Citation: 191 A. 491
• Parties: MALFETANO v. UNITED ELECTRIC RYS. CO. (two cases).
• Court: Rhode Island Supreme Court

191 A. 491

MALFETANO

v. UNITED ELECTRIC RYS. CO. (two cases).

Nos. 7696, 7697.

Supreme Court of Rhode Island.

April 23, 1937.

COPYRIGHT MATERIAL OMITTED.

Certified from Superior Court, 'Providence and Bristol Counties; Herbert L. Carpenter, Judge.

Actions on the case for negligence by Edward Malfetano, and Loretta Malfetano, a minor, by her father and next friend, against the United Electric Railways Company, both cases being tried together. Verdict for defendant in the first case and for plaintiff in the second case. Plaintiff brings exceptions in the first case, and defendant brings exceptions in the second case, and the case was certified from the superior court.

All exceptions overruled and cases remitted for entry of judgment.

Hoyt W. Lark and Hart, Gainer & Carr, all of Providence, for plaintiffs. Clifford Whipple and Frank J. McGee, both of Providence, for defendant.

MOSS, Justice.

These are actions on the case, of which the former was brought by Edward Malfetano and the latter by his minor daughter, by him as her next friend, to recover for damages sustained by them respectively from severe personal injuries inflicted upon her by a trolley car belonging to the defendant. The plaintiffs allege that they were respectively in the exercise of due care at the time and that the accident was caused by the negligent operation of the car by the defendant's servant. The two cases were tried together.

The daughter, at the time of the accident, was six years and five months old and she and her friend Louise Barry, a child almost twelve years old, were on their way to a house on the west side of Elmwood Avenue in the city of Providence. There they expected to join another child and the three of them were to be taken to a school where the child plaintiff was to take part in a school play. It was then already dark and the street lights were on. The defendant's track for southbound cars in this section was on the west side of the street, between the sidewalk and the middle part of the street, which was used for general vehicular traffic and from which the track was separated by a 6 feet wide strip of grass with large trees in it at considerable intervals.

The story of the accident, as testified to by the plaintiffs and Louise Barry, was as follows: The child plaintiff and her friend were taken by the former's father in his automobile to a place on the west side of the middle part of the street a few feet north of the house to which the children were going. There he stopped the automobile, which was headed south, and looked back to see if any trolley car was coming from the north, but saw none. The children then got out and started to walk toward the house, while he remained in the automobile. The child plaintiff was in the lead and had crossed the strip of grass, when it was discovered that the plaintiff's costume for the play had been left in the automobile.

So the older child started back to get it, while the younger one, after she had crossed the east rail of the defendant's track and had reached a point about a foot to the west of it, stopped, facing to the southwest, toward the house to which she was going, and waited for the other child to catch up with her. As she stood there, she was struck by the defendant's car, which had approached from the north, at a speed of 30 to 35 miles per hour, without any warning being given her of its approach, except that her father, when the car was 35 to 40 feet from her, perceived it and shouted her name. She was picked up 20 to 30 feet from the place where she was struck. The father testified that when he first saw the car, the motorman and another man in the front vestibule were looking at each other.

On the other side the defendant's motorman testified that the car was going only 8 or 9 miles per hour just before the accident; that just as the car came about even with a big tree to the left of the track he saw the child plaintiff come out from behind it; that she was then pretty close to the car track; that she struck the car, and that he stopped it as soon as it could be stopped after he saw her. There was some testimony in corroboration of his.

At the conclusion of the trial that is now being reviewed by us, the jury returned a verdict for the defendant in the father's case and for the plaintiff in the child's case, and assessed her damages at $10,000. The former case is now before us on the plaintiff's exception to the denial by the trial justice of his motion for a new trial and on other exceptions, which were taken by him at the trial. The latter case is before us on the defendant's exception to the denial by the trial justice of its motion for a new trial and on other exceptions taken by it at the trial.

To take up the child's case first, the first exception for consideration is that of the defendant to the denial by the trial justice of its motion for the direction of a verdict in its favor. Accepting as true the facts that are testified to by the plaintiff and her witnesses, and drawing from them all reasonable inferences that are favorable to her, we are of the opinion that there was evidence to go to the jury on the issue of negligence by the motorman in the operation of the car by operating it at the speed testified to by them, without giving any warning of its approach, and without keeping a sharp enough lookout for persons who might be crossing the track, and also on the issue of reasonable care on the part of the plaintiff in view of her tender years. As this evidence, in our judgment, required that the defendant's motion for the direction of a verdict in its favor be denied, we are not required, in order to sustain the denial of this motion, to decide that there was evidence to go to the jury on the issue whether the defendant had the last clear chance to avoid the accident.

The defendant, at the trial, contended in support of this motion, and renewed the contention before us, that there was a fatal variance between the declaration and the evidence for the plaintiff. This variance, it contended, was established by the fact that in her declaration it was alleged, in substance, that at the time of the accident the child was crossing the track, whereas the evidence in her favor was that at the time when she was struck by the defendant's car and for some moments before that time she was standing in the track facing in a southwesterly direction, looking toward the house to which she was going.

But this evidence in her favor showed also that she had left the automobile and started to cross the track to go to this house and had stopped after she had reached a point a foot or so beyond the east rail, intending to wait only a few moments until her friend overtook her and then to continue across the track. In our opinion this evidence did not differ so materially from the allegation that she was crossing the track at the time of the accident as to constitute a fatal variance, which made it the duty of the trial justice to grant the defendant's motion for a directed verdict.

The defendant contends also, in support of its exception to the denial of its motion for the direction of a verdict in its favor, that because the plaintiff did not in her declaration claim the benefit of the doctrine of the last clear chance there was no issue for the jury based on that doctrine. The exception cannot be sustained on this contention, for the reason that, as we have already decided, the denial of the motion was proper, because there was evidence for the jury that the plaintiff, in view of her tender years, was in the exercise of due care at the time of the accident. Whether the issue based on the above doctrine should have been excluded from consideration by the jury because not expressly relied on in the declaration will be considered by us infra in connection with the defendant's exception to the refusal of its request to the trial justice that in his charge this issue be thus excluded.

The next exception insisted upon by the defendant in its brief is stated in the transcript as follows: "The defendant takes exception to that portion of the charge of the trial justice wherein the justice referred to the doctrine of the last clear chance, stating that if the jury found certain facts, the doctrine of the last clear chance might apply, the position of the defendant being that there is no evidence in the case, upon which to base any such doctrine."

It seems to us clear from the language of this exception that the defendant was not excepting to the way in which the trial justice stated the doctrine to the jury, but only to the fact that he gave them any instruction with regard to that doctrine and told them that they could apply it, if they found certain facts from the evidence. This is clear because the exception, when taken, was based solely on the defendant's contention that there was no evidence of such facts. The question of the accuracy of the trial justice's statement of the doctrine was, therefore, not raised by the exception and we are not called upon to pass upon that question. The statement must stand as a part of the "law of the case," and as being, for the purposes of this case, a correct and complete statement of the doctrine.

It therefore follows that this exception simply presents to us for decision the first of the two...