New England Pretzel Co. v. Palmer

• Decision Date: 17 June 1949
• Docket Number: No. 9025.,9025.
• Citation: 67 A.2d 39
• Parties: NEW ENGLAND PRETZEL CO. v. PALMER et al.
• Court: Rhode Island Supreme Court

67 A.2d 39

NEW ENGLAND PRETZEL CO.

v.PALMER et al.

No. 9025.

Supreme Court of Rhode Island.

June 17, 1949.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Action by New England Pretzel Company against Howard S. Palmer and others, trustees of New York, New Haven and Hartford Railroad Company, to recover for damage to plaintiff's tractor trailer in collision with freight cars in defendants' freight yard. Defendants' motion for directed verdict was denied and they bring exceptions.

Exceptions sustained with directions.

Martin M. Zucker, Providence, for plaintiff.

William E. Boyle, William J. Carlos, Providence, for defendants.

CONDON, Justice.

This is an action for negligence which plaintiff alleges caused a collision between its tractor trailer and three freight cars of the New York, New Haven and Hartford Railroad Company in its freight yard in Pawtucket in this state. Defendants are trustees of the railroad and they have brought the case here on a bill of exceptions. On our view of the evidence only the exception to the superior court's denial of their motion for a directed verdict need be considered.

The collision occurred shortly before 5 p. m. on October 16, 1945 while plaintiff's tractor trailer was parked in the defendants' freight yard across the roadway between tracks 14 and 16 in such a manner that the right front corner of the bumper was slightly overhanging the right of way of track 14 not more than ten inches. Plaintiff's driver testified that he had parked it that way because he desired to back the tractor trailer up to the door of a freight car on track 16 from which he was transferring a shipment of bagged corn. He further stated that he ‘jackknifed’ the tractor as much as he could. However, he admitted that it was not necessary to back the tractor trailer at a right angle to the freight car in order to transfer the bags of corn to the trailer. It could have been accomplished by backing the trailer so that no part of it would overhang the right of way of track 14, but the driver testified that it would not then be as easy and convenient to unload the freight car at it was in the position in which he had placed the tractor trailer. In other words, it is clear that he deliberately chose to place it in a position of danger merely to facilitate the work of unloading, and not because of any necessity or emergency.

While the driver and his assistant were in the freight car on track 16 unloading the corn three freight cars coupled together were ‘kicked’ down track 14 by a switching engine which was several hundred feet up the track to the west in charge of an engineer and a conductor. As the cars were running free down the track the head car collided with the right front corner of the tractor and damaged it and the trailer seriously. Plaintiff's driver and his assistant testified that they did not know that switching operations were being conducted on track 14 until they heard the crash of the collision and saw the freight cars against the tractor. Defendants' engineer and conductor testified that they did not know that track 14 was obstructed and that they did not see the tractor before the freight cars were released and ‘kicked’ down the track. Two other members of the switching crew testified to the same effect.

Plaintiff's driver and his assistant testified that a short time before the collision several men with soiled faces and dressed in what the witnesses considered were workmen's clothes usually worn by railroad men came over and jokingly asked for some pretzels. They did not testify where those men were at the time in relation to the tractor or whether the overhanging bumper could have been seen by them. Neither witness testified that the men were members of the crew that switched the three freight cars down track 14. However, each did testify that before the accident they had seen them on a switching engine further over in the yard. Each also testified that those men did not warn them that there was going to be any switching on track 14.

The conductor, the engineer and two other members of the crew that performed the switching operations in question denied that they talked to the plaintiff's driver or assistant on the day of the accident or that they had any knowledge of the position of the tractor obstructing track 14. Neither the plaintiff's driver nor his assistant was able to identify those witnesses as the same men who had talked to them before the accident. Plaintiff nevertheless contended that there was evidence from which the jury could infer that they were the same men; that they knew or in the exercise of due care should have known that the tractor was in a position of peril by reason of the switching about to take place on track 14; and that it was their duty to warn plaintiff's servants of such peril. Plaintiff further claims that the negligence of those men was properly attributable to defendants' servants who actually released the freight cars on that track and constituted the proximate cause of the collision.

The trial justice did not wholly agree with those contentions. He held that the driver was negligent in placing the tractor trailer in a place of danger and that if there was no more to the plaintiff's case than that he would take it from the jury. However, he declined to do so because he felt that the testimony concerning the presence in the yard of the men who talked to plaintiff's witnesses raised a question of fact whether shortly before the accident the railroad had constructive notice that the tractor was in a position of peril obstructing the right of way of track 14. And he further held that if the jury so found then a further question would arise for their determination whether on the evidence before them the railroad had the last clear chance to avoid the accident. For those reasons he denied defendants' motion for a directed verdict.

The decisive question here on defendants' exception to that ruling is whether the evidence is such that the doctrine of the last clear chance can be properly invoked. That doctrine has long been recognized in this state but there have been comparatively few controversies in this court relative to its application in a given case. Vizacchero v. Rhode Island Co., 26 R.I. 392, 59 A. 105, 69 L.R.A. 188; Malfetano v. United Electric Rys., 58 R.I. 129, 191 A. 491. It is clear that in those cases where the occasion has arisen for a discussion of the limits of the doctrine the court has held it applicable only where the evidence disclosed that the plaintiff had negligently placed himself or his property in a position of peril; that defendant thereafter had become aware or in the exercise of due care ought to have become aware of plaintiff's peril and his lack of comprehension of it or apparent inability to extricate himself from it; that the defendant if he had been in the exercise of due care had a reasonable opportunity thereafter to avoid injuring the plaintiff; and that defendant failed to exercise such care. Underwood v. Old Colony Street Ry., 33 R.I. 319, 80 A. 390; Morrison v. Rhode Island Co., 41 R.I. 474, 104 A. 71.

There has long been a conflict of authority in American jurisdictions on whether it must be shown that defendant had actual knowledge of the plaintiff's peril. Some hold that unless the evidence shows that the defendant had such knowledge the doctrine cannot be invoked. Katsikas v. Manchester Street Ry., 90 N.H. 21, 3 A.2d 821; Emmett v. Alabama Great Southern Ry., 226 Ala. 310, 146 So. 811; Snyder v. New York Central R. R. 101 Ind.App. 258, 194 N.E. 796; Lynch v. Des Moines Ry., 215 Iowa 1119, 245 N.W. 219; Cleveland Ry. v. Masterson, 126 Ohio St. 42, 183 N.E. 873, 92 A.L.R. 15. But the great weight of authority is clearly the other way. See Note 92 A.L.R. 47; Shearman and Redfield on Negligence (6th Ed.) § 99. However, there can be no question that actual knowledge of plaintiff's peril is a prerequisite for the application of the doctrine in cases where there is no duty on a railroad to keep a lookout for persons not rightfully upon its tracks such as trespassers and the like.

Even in Vermont where the necessity of proving the defendant's actual knowledge of plaintiff's peril has been strongly repudiated in a series of cases applying the doctrine of the last clear chance the court nevertheless, in Dent v. Bellows Falls and Saxton River Street Ry., 95 Vt. 523, 530, 116 A. 83, 86, stated: ‘The extension of the doctrine to perils not actually discovered is fully justified when the situation is such that the defendant owes the duty of looking out for danger, as in the case of persons crossing a railroad at a highway crossing at grade. Our cases in which the rule has been formulated are...