Oates v. Union R. Co.

• Decision Date: 28 March 1906
• Parties: OATES v. UNION R. CO.
• Court: Rhode Island Supreme Court

63 A. 675

27 R.I. 499

OATES

v. UNION R. CO.

Supreme Court of Rhode Island.

March 28, 1906.

Trespass on the case by Martha A. Oates, administratrix of Patrick Oates, against the Union Railroad Company, for negligence. Heard on exceptions of defendant after denial of motion for new trial by superior court. Exceptions sustained, and new trial granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Sheehan & O'Brien, for plaintiff. Henry W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant

DOUGLAS, C. J. This action was brought by the administratrix of Patrick Oates, who was killed by the collision of the defendant's trolley car with a tipcart which he was driving upon a public highway, in the city of Providence, May 29, 1902. It seeks to recover damages for his death, alleging that the collision was caused by the negligence of the defendant's servants. The car struck the hub of one of the wheels of the cart as the latter had nearly crossed the car track. The shock threw the intestate from his seat on the cart to the ground. A wheel of the cart passed over his body, and his injuries resulted in death the same evening. At the trial in the superior court the jury found for the plaintiff, and assessed the damages at the sum of $4,095. The defendant duly filed a petition for a new trial in that court, upon the grounds that one George W. Bennett, who served as a member of the jury, was not drawn as a juror, and that the verdict was against the evidence. The trial justice denied this petition, and the defendant excepted to his decision and now brings his bill of exceptions to this court, assigning as error the denial of the petition and certain rulings of the justice at the trial, to which exception was taken.

1. The objection in regard to the juryman as a ground for new trial was properly overruled. It appears that the name George W. Bennett, Jr., clerk, appeared on the list of persons drawn by the board of aldermen of the city of Providence to serve as jurors in the superior court, but that the city clerk, having ascertained that George W. Bennett, Sr., was a clerk and George W. Bennett, Jr., was not, conceived that George W. Bennett, Sr., was the person drawn, and so erased the letters "Jr." as a clerical error. Notice was accordingly served on George W. Bennett, who appeared in court and was duly impaneled. We can hardly say that this was error. But it does not appear that George W. Bennett was not duly qualified, or that his presence on the jury in any way prejudiced the defendant in such case it has been held that after verdict the objection that a juror has not been duly drawn comes too late. Sprague v. Brown, 21 R. I. 329, 43 Atl. 636. In the course of the trial the plaintiff offered in evidence the ordinances of the city of Providence limiting the speed and regulating the management of trolley cars. The defendant's counsel objected, on the ground that the violation of the city ordinances was not alleged in the declaration as a ground of action; but the court admitted them as establishing a rule of conduct the infraction of which would be negligence, and furthermore charged the jury "that if you find that, at the time of the collision, the car in question was being propelled at a greater rate of speed than 10 miles an hour, in violation of that ordinance, that the defendant was guilty of negligence, as a matter of law, and if by reason of such negligence the injury to the deceased occurred, the plaintiff is entitled to recover," and in reply to the defendant's request to charge, "That the violation of the ordinances of the city does not excuse the plaintiff from exercising reasonable care," the court refused the request, and allowed the defendant an exception. The charge of the court, as a whole, stated very clearly the law relating to the relative rights of the car company and the driver of a cart in the circumstances shown, and the request might have been refused, as having been already substantially given. If the court had so stated we think the refusal would not have misled the jury; but as they had just been told that disobedience of the city ordinance constituted negligence which entitled the plaintiff to recover, the specific refusal to modify the statement by the addition of the proposition contained in the request was likely to be understood as excluding contributory negligence as a defense in case of breach of an ordinance. It may not be improper, in this connection, to say that the practice of reading to a jury a request to charge which is refused is always unnecessary and often misleading. Requests to charge are required, by superior court rule 17, to be submitted in writing. So much of the instruction, or such modification, of it as the court thinks correct and applicable to the case should be given to the jury, and exceptions to modifications and refusals should be allowed and made part of the record by direction to the stenographic clerk.

2. But aside from this objection, we think that the court erred in its conception of the application and effect of the city ordinances. The objection urged by the defendant to the admission of them, that they were not declared upon, is not tenable. It was held in Heeney v. Sprague, 11 R. I. 456, 23 Am. Rep. 502, that the violation of a duty imposed by a city ordinance is no ground for a civil action and In Grant v. Slater Mill & Power Co., 14 R. I. 380, that unless a statute prescribes a duty for the benefit of a particular class of persons no civil action will lie for the breach of it And it is evident that the rules prescribed by the city council for the control and management of the cars in the streets of the city, made in pursuance of authority given them by the statutes, must be pertinent as bearing upon the question of the conduct of the plaintiff's intestate. The deceased had a right to expect that the company would observe the requirements of the ordinances, and his reliance upon that expectation would not...