Mandella v. Mariano, No. 7984.

CourtRhode Island Supreme Court
Writing for the CourtCAPOTOSTO, Justice.
Citation200 A. 478
PartiesMANDELLA v. MARIANO.
Decision Date29 June 1938
Docket NumberNo. 7984.
200 A. 478

MANDELLA
v.
MARIANO.

No. 7984.

Supreme Court of Rhode Island.

June 29, 1938.


200 A. 478

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.

&gt

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

200 A. 479

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...

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7 practice notes
  • Marley v. Borough of Palmyra
    • United States
    • Superior Court of New Jersey
    • September 7, 1983
    ...distinguished from an act done carelessly, thoughtlessly, needlessly, or inadvertently. "Misconduct" in Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479 (1938) was said to [a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful ......
  • Hider v. Department of Labor, Licensing and Regulation, No. 687
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Mandella v. Mariano, 61 R.I. 163, 200 A. 478, (Emphasis added) (cited by the Court of Appeals in Resetar v. State Board of Educ., 284 Md. 537, 562, 399 A.2d 225, cert. denied, 444 U.S. 838, 10......
  • Resetar v. State Bd. of Ed., No. 62
    • United States
    • Court of Appeals of Maryland
    • March 8, 1979
    ...misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479. (Id. at The same authority refers at 1150 to "misconduct in office" as being "(a)ny unlawful behavior by a public officer in relation to the ......
  • Palmentieri v. City of Atlantic City
    • United States
    • Superior Court of New Jersey
    • June 15, 1988
    ...distinguished from an act done carelessly, thoughtlessly, needlessly, or inadvertently. "Misconduct" in Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479 (1938) was said to [a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful ......
  • Request a trial to view additional results
7 cases
  • Marley v. Borough of Palmyra
    • United States
    • Superior Court of New Jersey
    • September 7, 1983
    ...distinguished from an act done carelessly, thoughtlessly, needlessly, or inadvertently. "Misconduct" in Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479 (1938) was said to [a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful ......
  • Hider v. Department of Labor, Licensing and Regulation, No. 687
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Mandella v. Mariano, 61 R.I. 163, 200 A. 478, (Emphasis added) (cited by the Court of Appeals in Resetar v. State Board of Educ., 284 Md. 537, 562, 399 A.2d 225, cert. denied, 444 U.S. 838, 10......
  • Resetar v. State Bd. of Ed., No. 62
    • United States
    • Court of Appeals of Maryland
    • March 8, 1979
    ...misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479. (Id. at The same authority refers at 1150 to "misconduct in office" as being "(a)ny unlawful behavior by a public officer in relation to the ......
  • Palmentieri v. City of Atlantic City
    • United States
    • Superior Court of New Jersey
    • June 15, 1988
    ...distinguished from an act done carelessly, thoughtlessly, needlessly, or inadvertently. "Misconduct" in Mandella v. Mariano, 61 R.I. 163, 200 A. 478, 479 (1938) was said to [a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful ......
  • Request a trial to view additional results

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