MlSch v. Montgomery

• Decision Date: 30 July 1938
• Docket Number: Nos. 8008, 8009.,s. 8008, 8009.
• Citation: 200 A. 1003
• Parties: MlSCH v. MONTGOMERY (two cases).
• Court: Rhode Island Supreme Court

200 A. 1003

MlSCH

v. MONTGOMERY (two cases).

Nos. 8008, 8009.

Supreme Court of Rhode Island.

July 30, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Two actions by Walter Richard Misch and by Walter P. Misch against T. Reed Montgomery for injuries received by the minor plaintiff when struck by a missile propelled by the defendant's son with a slingshot. Decision for defendant, and plaintiff brings exception.

Exception overruled and case remitted with directions.

T. Dexter Clarke, George Paul Slade, and Greenough, Lyman & Cross, all of Providence, for plaintiffs. Andrew P. Quinn and Alan P. Cusick, 2nd, both of Providence, for defendant.

CONDON, Justice.

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These two cases are companion actions to the two which were brought by the same persons, a father and his minor son, as plaintiffs against the minor son of the defendant in the instant cases. All four actions were brought to recover damages for injuries to an eye of the minor plaintiff, which are alleged to have been caused by a missile propelled by the minor defendant with a slingshot.

In each of the instant cases the plaintiff seeks to hold the defendant liable on the ground that he knew, or should have known by the exercise of reasonable care, that his said son had in his possession a dangerous weapon, a slingshot, and that the defendant negligently permitted the son to continue in possession of it and to use it, with the result that the son did use it against the minor plaintiff, and thereby caused the injury to the eye of the minor plaintiff for which damages are sought.

The four cases were tried together before a justice of the superior court sitting without a jury. He rendered decisions for the plaintiffs in the other cases, which later came before us on bills of exceptions by the defendant, which were disposed of by us in an opinion reported in, R.I., 200 A. 999.

In the instant cases the trial justice rendered decisions for the defendant on the ground that the plaintiffs had failed to show, by a fair preponderance of the evidence, any of the negligence on the part of the defendant with which the plaintiffs had charged him. These cases are now before us on bills of exceptions by the plaintiffs, the only exception in each being to the decision for the defendant.

We have examined and considered the pertinent evidence and are of the opinion that we cannot properly find that the trial justice was clearly wrong in his findings as to...