Oliver v. Pettaconsett Const. Co.

Decision Date09 June 1914
Docket NumberNo. 4718,4718
Citation90 A. 764,36 R.I. 477
PartiesOLIVER v. PETTACONSETT CONST. CO.
CourtRhode Island Supreme Court

Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge.

Action by Eliza J. Oliver against the Pettaconsett Construction Company. There was a verdict for plaintiff, and defendant brings exceptions. Sustained in part and overruled in part, and cause remitted for new trial.

A. B. Crafts and William H. McSoley, both of Providence, for plaintiff. Bassett & Raymond, of Providence (Russell W. Richmond, of Providence, of counsel), for defendant.

PARKHURST, J. This is an action on the case for negligence, and after verdict for the plaintiff in the superior court, and after denial of defendant's motion for a new trial, has been duly prosecuted to this court upon the defendant's bill of exceptions.

The declaration is in two counts. The first count alleges: That on the 17th day of December, 1909. the defendant was engaged in the business of constructing a sewer in Ophelia street, a public highway in the city of Providence. That on said day said Ophelia street was excavated to a great depth, and was further obstructed by the tools, timber, utensils, machinery, and appliances used by the defendant in furtherance of the work, so that pedestrians were compelled, in order to go to and from their residences and houses, on business and for divers purposes, to diverge from the line of said Ophelia street, outside of the same, as by law they had a right to do, and that on said day certain footpaths, immediately adjacent to said street and between divers piles of lumber and timbers, and other machinery, appliances, and débris, had been left open by the defendant for the accommodation of said pedestrians, and were then and there, as for a long time before that day they had been used, adopted, and accepted by said pedestrians for their accommodation, as aforesaid, as the defendant corporation then and there well knew. And it was then and there the duty of said defendant corporation to keep said pathways reasonably clear of obstructions dangerous to passengers in the nighttime, and to abstain from creating any dangerous obstruction in said pathways adjacent to said street liable to trip and throw pedestrians where there was no light to disclose conditions of said pathways. That the defendant corporation, by its agents and servants, in disregard of its duty aforesaid, negligently and carelessly placed planks, obstructions, debris, and timbers in said pathway, and then and there allowed the same to remain therein, and knew of said planks, obstructions, debris, and timbers being in said pathway, and being dangerous to pedestrians, and liable to trip them in the night season, or but for want of reasonable care would have known thereof. That while in the exercise of due care on her part while she was passing through said pathway adjacent to said Ophelia street, in the nighttime of said 17th day of December, she stumbled and fell over certain planks, obstructions, debris, and timbers then and there in said pathway piled to a considerable height, to wit, two feet across the traveled path of said pathway, and was severely injured, straining and laming her back and knee, and receiving a permanent shock to her nervous system, alleging certain permanent injuries.

The second count is substantially the same as the first, except as to the duty charged, and the breach of duty. This is charged as follows:

"It was then and there the duty of said defendant corporation to use reasonable care to keep said footpaths reasonably lighted so that pedestrians lawfully using said street as aforesaid might be able by the exercise of reasonable care on their part to see numerous obstructions thereon and projecting therein."

And the plaintiff alleges that the defendant corporation for a long time before said 17th day of December, 1909, and up to the time of the accident, had assumed and attempted to discharge said duty by placing lanterns and lights along said footpaths to light up the same and make the same reasonably safe. The plaintiff then alleges she fell over timbers, planks, and debris, and obstructions piled up in said footpath to the height of two feet, and that the defendant in disregard of its duty aforesaid negligently and carelessly failed to light said footpath at said place, so that the plaintiff, or other pedestrians, could see the said planks, timbers, debris, and other obstructions, alleging certain permanent injuries.

The defendant pleaded the general issue after a demurrer to the first count had been overruled.

Briefly stated, the testimony shows that for some months prior to December 17, 1909, the defendant had been engaged under contract with the city of Providence in building a sewer in Ophelia street in said Providence, and that said street was excavated to a great depth and was impassable for a long distance; that the defendant had upon the land adjacent to said street and to the easterly thereof large quantities of timbers, boards, planks, bricks, pipes, and other materials and tools necessary for the work; that pedestrians living on the said street were unable to pass to and from their houses along said street, and were in the habit of traveling over land lying to the easterly of said street, where the same was more or less obstructed by the contractor's materials, following ways which were used by defendant's employés in and about the handling of materials and doing their work. It further appears that on the evening of December 17, 1909, at about 7 o'clock, the plaintiff was returning to her house near Ophelia street, from Hartford avenue, going northerly, in company with her husband and a friend, and that they were walking upon land of private owners outside of the line of said street and to the east thereof; that they were endeavoring to make their way over the said land occupied by said contractor's materials, and along and between large piles of brick and other materials in the same way (as they claim) that they had previously used and had used that same afternoon about 4 o'clock p. m. in leaving their homes and going to Hartford avenue; that when they reached a point some distance north of Carmody's store they came to a large pile of brick and were obliged to turn easterly and northerly about the same, and that beyond said pile of brick the way was quite dark, the light from the electric street lamp being shut off by the brick; that Mr. Oliver, the plaintiff's husband, and plaintiff's friend, Mrs. Milner, preceded the plaintiff to find the way and passed on in safety, but that the plaintiff, who was in the rear and a little to the right of them, stumbled over some planks and fell and was injured, as set forth in the declaration.

Inasmuch as we find that the trial judge committed certain errors, in the admission of evidence and in his charge to the jury, which entitle the defendant to a new trial, we shall not at this time consider the exceptions based upon the denial of the defendant's motion for a new trial and upon the denial of the defendant's motion for the direction of a verdict in its favor (exception 13), since those exceptions involve a consideration of the weight of the evidence, and the weight of the evidence cannot now be considered in view of the fact that certain improper evidence was allowed to go to the jury.

The defendant's first exception relates to the overruling of a demurrer to the declaration. It appears that this demurrer which was overruled was filed to the first count of the declaration, and that thereafter, by agreement, the declaration was amended by filing a second count to which no demurrer appears to have been interposed. We find no exception to this ruling in the papers, nor do we find any error, and this exception is overruled.

The defendant's second and third exceptions are waived.

The defendant's fourth exception was to the admission of certain questions asked of Dr. William H. Palmer, an expert for the plaintiff (Tr. pp. 240-242), viz.:

"39. Q. Taking those into consideration, and her testimony on the witness stand, Doctor, what is your opinion as to her condition and what the trouble is with her, giving your reasons and full explanations as much as a medical man can? 40. Q. Assuming that the jury find her condition to be as stated by her so far as depends upon the subjective symptoms?"

These questions, taken together as one, are objectionable for the reason that they do not give a clear statement before the Jury of the various facts upon which the opinion of the witness was to be based; such questions have frequently been held inadmissible. 17 Cyc. 255 b.; Barber's Appeal, 63 Conn. 393, 408, 27 Atl. 973, 22 L. R. A. 90; In re Will of Snelling, 136 N. T. 515, 518, 32 N. E. 1006; Mfrs. Acc. Indemnity Co. v. Dorgan, 58 Fed. 945, 7 C. C. A. 581, 585, 22 L. R. A. 620. But as the further examination of the same witness does show in detail by numerous and extended questions, asked and answered without objection, upon what facts and symptoms, both objective and subjective, his opinion was based, we find that the error was technical rather than substantial and that no harm was done. This exception is therefore overruled.

The defendant's fifth exception to the admission in...

To continue reading

Request your trial
12 cases
  • Forcier v. Cardello
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 7 Noviembre 1994
    ...the duty imposed by the contract relates to matters which have a direct bearing upon the damages sustained. Oliver v. Pettaconsett Con. Co., 36 R.I. 477, 484, 90 A. 764, 771 (1914). Incidental third parties beneficiaries of a contract do not have a right to recovery on the contract in the e......
  • Larson v. Heintz Const. Co.
    • United States
    • Supreme Court of Oregon
    • 30 Octubre 1959
    ...Cf. also Cochran v. Public Service Electric Co., 1922, 97 N.J.L. 480, 117 A. 620. In a Rhode Island case, Oliver v. Pettaconsett Const. Co., 1914, 36 R.I. 477, 90 A. 764, 767, the contract which plaintiff attempted to introduce provided merely that when the defendant found it necessary in t......
  • Pastorelli v. Associated Engineers, Inc., Civ. A. No. 2082.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • 10 Julio 1959
    ...who is not a party to such contract. This is the general rule in Rhode Island and elsewhere. See, e. g., Oliver v. Pettaconsett Construction Co., 1914, 36 R.I. 477, 90 A. 764. But the plaintiff here is not seeking damages for the breach of any of the contractual obligations of the defendant......
  • Stafford v. Thornton, 7721
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 19 Junio 1967
    ...v. T. L. James & Co., 231 F.2d 802 (5th Cir.). Hansen v. Clyde, 89 Utah 31, 56 P.2d 1366, 104 A.L.R. 943. Oliver v. Pettaconsett Construction Co., 36 R.I. 477, 90 A. 764. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551. We think the better reasoned weight of authorities supports t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT