O'Neil v. Bates

• Decision Date: 02 December 1895
• Citation: 40 A. 236,20 R.I. 793
• Parties: O'NEIL v. BATES, City Treasurer.
• Court: Rhode Island Supreme Court

40 A. 236

20 R.I. 793

O'NEIL

v. BATES, City Treasurer.

Supreme Court of Rhode Island.

Dec. 2, 1895.

Trespass on the case by Timothy O'Neil against Frank M. Bates, as city treasurer of the City of Pawtucket. Verdict for plaintiff. Heard on defendant's petition for a new trial. Granted.

Dennis J. Holland and James M. Brennan, for plaintiff.

Thomas P. Barnefield, City Sol., and Raymond G. Mowry, for defendant.

PER CURIAM. We think that the verdict was against the evidence, both on the issue of negligence of the city of Pawtucket, and the issue of contributory negligence on the part of the defendant. Not only had the city taken the precaution to inclose that portion of the street in which the sewer trench had been dug, so that travelers on the street should pass only on that part of it lying easterly of the excavation, but it had also employed watchmen to see that the barriers were kept up. During the temporary absence of the watchman, in the discharge of his duty elsewhere along the line of the inclosure, some one without authority wrongfully removed the barrier at the point where the plaintiff entered the inclosure. We think that the city had taken every reasonable precaution that could be required of it to guard travelers from accident, and that it was not bound to anticipate the unauthorized and wrongful acts of others in removing the barriers during the temporary absence of its watchman in the performance of his duties at other points. Mahogany v. Ward. 16 R. I. 479, 484, 17 Atl. 860, and cases cited. We think, too, that, though the plank forming the barrier had been turned aside at the point where the plaintiff entered the inclosure, he could not have failed to know of the existence of the sewer trench, and that, in walking in the darkness along the narrow path by the side of it, he took the risk of making a misstep and falling into the trench. If, knowing the danger, he took the risk, and, falling into the trench, received an injury, he has no ground of complaint against the city, and has only himself to blame for the accident. Defendant's petition for a new trial granted, and case remitted to the common pleas division, with direction to enter judgment for the defendant, with costs.