Mandella v. Mariano

• Decision Date: 29 June 1938
• Docket Number: No. 7984.,7984.
• Citation: 200 A. 478
• Parties: MANDELLA v. MARIANO.
• Court: Rhode Island Supreme Court

200 A. 478

MANDELLA

v. MARIANO.

No. 7984.

Supreme Court of Rhode Island.

June 29, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.

Action of trespass on the case for negligence by Michael Mandella, Jr., p. a., against Michael Mariano, Jr., for injuries sustained when defendant interjected himself into a game in which plaintiff was engaged and struck plaintiff. Verdict for defendant. On plaintiff's exception.

Exception sustained and the case remitted for new trial.

Fergus J. McOsker, of Providence, for plaintiff. Ralph Rotondo, of Providence, for defendant.

CAPOTOSTO, Justice.

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This action of trespass on the case for negligence was tried before a justice of the superior court sitting with a jury and resulted in a verdict for the defendant. The case is before us on the plaintiff's single exception to a certain portion of the charge to the jury.

The declaration is in one count and alleges that on February 11, 1937, while the plaintiff, a minor, was playing with some boys in a school yard, the defendant "carelessly and negligently * * * interjected himself into the game in which the plaintiff was engaged without being invited so to do and did thereupon carelessly and negligently strike against or push the said plaintiff violently to the ground injuring him." The defendant filed a plea of the general issue to this declaration.

The accident under consideration in this case happened in a school yard and involves three boys, all about twelve years old. The testimony for the plaintiff, in substance, shows that the plaintiff was playing with John Mastrati and not with the defendant, who was playing elsewhere in the school yard; that the plaintiff had Mastrati down on the ground and was sitting on his legs to keep him down; and that, while he was in this position, the defendant, suddenly and without warning, ran up to him from behind, jumped on his back, and threw him to the ground, inflicting the injury about which he complains. The testimony is undisputed that the plaintiff suffered a fracture of the "middle third of the right collar bone, with some overlapping." The testimony for the defendant is practically to the same effect.

The charge of the court on these facts is rather sketchy. After advising the jury to use "that intelligence which men and women over 25 years of age are expected to use in ordinary matters", he briefly tells them to consider "whether the boys involved in this case were acting their age", in which case their verdict should be for the defendant, but that, on the other hand, if the defendant "did not act as an ordinary healthy 12-year-old boy might act in a school yard", and the plaintiff was injured as a result of his conduct, their verdict should be for the plaintiff.

The trial justice then remarks that: "It may be unfortunate that one is hurt in playing" and mentions, by way of illustration, a number of games which children sometimes play, thereby voluntarily exposing themselves to injury. He continues with the following statement, which is almost at the very end of the charge and to which the plaintiff duly excepted: "In order to recover the plaintiff must prove his case by a preponderance of the evidence—by a fair preponderance of the evidence. In other words, the plaintiff must convince you by testimony which has greater weight with you than the testimony in contradiction of the plaintiff's claim that he was injured as the result of misconduct on the part of the defendant." (Italics ours.)

We are not called upon, under the exception before us, to determine whether the charge assumes a situation different from that shown by the evidence, for the charge as given, being unquestioned, except as above indicated, remains the law of the case. Considering the entire charge with special reference to the part thereof brought before us by the plaintiff's exception, it is our opinion that the trial justice committed prejudicial error when he instructed the jury that in order to find for the plaintiff, they must be convinced by a fair preponderance of the evidence that the plaintiff was injured as the result of "misconduct" on the part of the defendant.

This is an action for negligence, and negligence, speaking generally, is a relative term implying failure to comply with an indefinite rule of conduct in...