McHugh v. Williams & Payton, 5314.

• Decision Date: 07 July 1920
• Docket Number: No. 5314.,5314.
• Citation: 110 A. 607
• Parties: McHUGH v. WILLIAMS & PAYTON.
• Court: Rhode Island Supreme Court

110 A. 607

McHUGH

v. WILLIAMS & PAYTON.

No. 5314.

Supreme Court of Rhode Island.

July 7, 1920.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.

Action by Mary C. McHugh against Williams & Payton. Verdict for plaintiff, and defendants prosecute bill of exceptions. All exceptions overruled except one, which is sustained, and another not considered, and case remitted for new trial.

Charles A. Walsh, of Providence, for plaintiff.

Green, Hinckley & Allen, of Providence (Abbott Phillips and Clifford A. Kingsley, both of Providence, of counsel), for defendants.

SWEENEY, J. This is an action of trespass on the case for negligence to recover damages for personal injuries sustained by the plaintiff on account of the negligent handling of acid by the defendants. The jury returned a verdict for the plaintiff, and the defendants duly filed a motion for a new trial, which was denied by the trial justice after hearing the parties, and the defendants then duly prosecuted their bill of exceptions to this court.

At the time of the accident, in February, 1918, the defendants were manufacturers of jewelry. Their place of business was on the third floor of a manufacturing building, and the plaintiff was an employe of another manufacturing company that occupied a portion of the floor space directly beneath that occupied by the defendants. The defendants used acid in connection with their business, and on the 20th day of February, 1918, a carboy of sulphuric acid commenced to leak and a quantity of it went through the floor and some of it fell upon the plaintiff and she was severely burned. The defendants' fourth and fifth exceptions are to the exclusion of questions to the plaintiff on cross-examination asking her if she made any claim against her employers under the Workmen's Compensation Act (Laws 1911-12, c. 831), and if her employer paid her under the Workmen's Compensation Act for this particular accident. The defendants claim the right to ask these questions under the provisions of section 7, art. 1, of the Workmen's Compensation Act, as it provides that—

"The right to compensation for an injury, and the remedy therefor granted by this act, shall he in lieu of all rights and remedies as to such injury now existing, either at common law or otherwise; and such rights and remedies shall not accrue to employes entitled to compensation under this act while it is in effect."

The only plea filed was that of the general issue. If the plaintiff had been paid compensation by her employer in accordance with an agreement made under the provisions of the Workmen's Compensation Act, the defendants should have specially pleaded the agreement in bar, as this is a statutory defense of recent origin, and did not exist at common law. These exceptions are overruled.

The sixth exception is to the ruling of the trial justice permitting a certain hypothetical question to be asked of the defendants' expert witness. The answer to the question was not prejudicial to the defend-

ants, and therefore the exception is overruled.

The seventh exception is to the denial of the defendants' motion to direct a verdict. The first count charges that it was the duty of the defendants to use reasonable care in placing these acids and in...