Peters v. United Elec. Rys. Co.

• Decision Date: 20 April 1933
• Docket Number: No. 7267.,7267.
• Citation: 165 A. 773
• Parties: PETERS v. UNITED ELECTRIC RYS. CO.
• Court: Rhode Island Supreme Court

165 A. 773

PETERS

v. UNITED ELECTRIC RYS. CO.

No. 7267.

Supreme Court of Rhode Island.

April 20, 1933.

SWEENEY and HAHN, JJ., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; Antonio A. Capotosto, Judge.

Action by Ruth Peters against the United Electric Railways Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained with plaintiff granted privilege of appearing to show cause why case should not be remitted with direction to enter judgment for defendant.

Hogan & Hogan and Laurence J. Hogan, all of Providence, for plaintiff.

Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant.

RATHBUN, Justice.

This is an action of trespass on the case for negligence, The jury returned a verdict for the plaintiff for $8,000. The defendant moved for a new trial and the trial justice ordered a remittitur of $1,500 which was duly filed. The case is here on defendant's exceptions as follows: To the admission and exclusion of evidence; to the refusal to instruct the jury as requested; to the denial of defendant's motion for a direction of a verdict; and to the denial of defendant's motion for a new trial.

The accident happened at 7:30 p. m. on December 23, 1930, near the corner of East avenue and Dryden avenue in the city of Pawtucket. East avenue leads northerly toward the center of Pawtucket and southerly toward the city of Providence. Beginning at the northerly corner of Dryden avenue, East avenue deflects in a curve to the left. At the place of the accident said avenue is a crowned road with a pitch of about 4 per cent. down from the middle of the road toward the east curbing. On the day of the accident a snowstorm, continuing from early morning until late afternoon, had caused the pavement to become very slippery. In the vicinity of the bus stop snow, pushed aside by snow plows, completely covered said east curbing.

Plaintiff, a woman twenty-nine years of age, and a younger sister were standing beside the pole designated as a bus stop close to the easterly curbing, waiting for the bus to come from Providence. As the bus approached, its left side was near the center of the road. When the front of the bus reached a point about opposite the bus stop, the driver turned the front wheels to the right toward the easterly curbing. The plaintiff and her sister, seeing the bus turn and realizing that it would not stop at the place where they were standing, walked behind the pole toward the place where the bus seemed about to stop. Just before it stopped it skidded a few feet and the right rear wheel slid against the curb. At the same time the plaintiff fell to the ground and received certain injuries. She contends that while she was standing on the sidewalk she was hit by the overhang of the bus and was thrown to the ground. The bus was not equipped with chains, but no claim of improper equipment was alleged. When the bus stopped, its rear end was ten or twelve feet beyond the pole at which the plaintiff had been standing. No wheel of the bus went upon the sidewalk.

The declaration is in one count and the negligence charged is stated as follows: "Yet the said defendant corporation, its servants and agents, notwithstanding its duty in the premises so recklessly, carelessly and negligently operated, managed and controlled its said automobile bus that it collided with and struck said plaintiff."

It will be noted that in the declaration no definite act of negligence is specified; and the defendant contends that there is no evidence from which the jury were warranted in finding it guilty of any negligent act. We are unable to ascertain from the record what was the negligent act—unless it was driving without chains—of which the jury and trial justice found the defendant guilty. The declaration contains no allegation of improper equipment and the uncontradicted testimony upon the point is to the effect that chains are not proper equipment for busses.

The operator of the bus testified that when he was 150 or 200 feet away from the pole he saw the plaintiff and her sister standing there; that considering the conditions— namely, a slight downward grade, a slippery pavement, snow banked against and over the curb, the slope of the street toward the curb, and the curve of the street to the left—he decided not to head the bus straight toward the pole lest it skid upon the sidewalk a injure the two women; that when he was about opposite the pole, having already reduced the speed of the bus by gradually applying the foot brake slightly and leaving the clutch engaged in order not to lose control, he turned the front wheels toward the right curb and proceeded in that direction at about four miles per hour; that as he reached the gutter the rear end of the bus slid sideways two or three feet, bringing the right rear wheel against the curb, and that the bus in the meantime rolled forward a few feet.

The plaintiff argues that the driver did not see her and her sister until he was opposite to the pole and that therefore he could not have planned as carefully as he testified he did. There is very little to support this argument. However, it is of no importance what the driver's motives were, if what he did was not negligent. What did he do that was negligent?

If the plaintiff is to recover, some evidence pointing to a negligent act, and sufficient to establish it, must be adduced. Much stress has been placed upon the fact that the bus was operated without chains. We have already considered this argument. Plaintiff testified that she saw the driver of the bus "reach for something and then give a sharp turn." There is no evidence that what he did either in reaching or in turning was negligent. Plaintiff testified that she observed the bus driver and saw what he did. She now contends that his conduct was negligent in spite of the fact that, although she knew of the slippery conditions as well as he did, she did not at the time, after observing the speed of the bus and the conduct of the operator, consider it necessary to take any precautions for her own safety, but on the contrary moved from a position of safety to one of danger. There is no evidence that the brakes were suddenly applied, thereby causing the bus to skid. There is no evidence tending to show excessive speed when the bus was approaching the pole. Most of the witnesses testified that the bus was proceeding slowly, at a speed which they variously estimated to be from ten to fifteen miles per hour. According to plaintiff's witness Larson the speed might have been as low as fifteen miles an hour. Plaintiff's witness Preeberg testified that the bus "wasn't travelling fast" but was going at a "reasonable rate of speed" and was "barely moving along when it started to skid." In direct examination plaintiff's witnesses Larson and Preeberg testified that the speed of the bus as it approached the pole was twenty-five miles per hour; but when their sworn statements to the defendant were produced each admitted that his statement to the defendant was correct. The sworn statement of the witness Preeberg contains language as follows: "It wasn't travelling fast and as it was slowing for a stop the rear end slid over and either hit the curbing or pole, stopping in about five feet after hitting something. * * * It was slippery, snow and ice on the road, speed of bus had been reduced considerably before the skid took place. Bus was...