Pierce v. New England Tel. & Tel. Co.
| Decision Date | 13 August 1957 |
| Docket Number | 9771,Nos. 9770,s. 9770 |
| Citation | 134 A.2d 421,86 R.I. 326 |
| Court | Rhode Island Supreme Court |
| Parties | Louis PIERCE v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY. Theresa PIERCE v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY. Ex. |
John F. McBurney, Pawtucket, Thomas E. F. Carroll, Cranston, for plaintiffs.
Swan, Keeney & Smith, John B. Dillon, Providence, for defendant.
These are actions of trespass on the case for negligence for the recovery of damages by the plaintiff Theresa Pierce for her physical injuries and by the plaintiff Louis Pierce, her husband for his consequential damages. The cases were tried together in the superior court before a justice thereof sitting with a jury which returned a verdict for the wife in the sum of $15,000 and for the husband in the sum of $10,000.
The defendant did not file a motion for a new trial in either case, but has prosecuted bills of exceptions to this court and now relies upon only two exceptions in each case: (1) to the ruling of the trial justice overruling its objection to the admission of any testimony from the witness Omer L. Pierce, and (2) to the refusal of the trial justice to direct a verdict for the defendant.
On May 21, 1952 an employee of defendant came to the home of the plaintiffs to install a telephone. The telephone was to be located in the den but he went to the cellar to do part of the work. The cellar consisted of two separate rooms connected by a narrow passageway approximately three feet wide. While in the cellar the employee was observed by the three sons of the plaintiffs, particularly by Omer the oldest, who was then between six and seven years of age. According to the testimony of the boy Omer, the employee asked Mrs. Pierce for a stepladder. When she said she did not have one, he found a backless chair near the coal bin, took it to the middle of the passageway and stood on it while doing some work. Upon completing his work in the cellar the employee went upstairs, finished the installation, and after testing the telephone left between 12:30 and 1 p.m.
About five o'clock that afternoon when a storm threatened and the electric lights began to flicker, Mrs. Pierce took two hurricane lamps and went into the cellar to fill them with kerosene. She said she did not recall whether the light at the foot of the stairs was on, but after she had taken about four or five steps beyond the furnace she struck something and lost consciousness. Mr. Pierce heard a crash and a scream, went down into the cellar and found his wife lying in the passageway beyond the overturned chair.
We shall first consider the ruling allowing the child Omer to testify. At the trial Omer was just under ten years old. When he was called as a witness the jury were sent out and the trial justice questioned him at considerable length. The child could spell his first and last names but could not spell his middle name 'Lowell.' He gave the date of his birth, where he lived and where he had lived before he moved to his present home five years ago. He told where he went to school, explained how he knew the nature of an oath, and said that he could remember things which had happened during the last five years. Counsel for defendant examined the child at some length, going over about the same ground covered by the trial justice. The trial justice then, over the objection of defendant, allowed the child to testify as to the facts of the case.
Counsel for both parties cite the same sections of 2 Wigmore on Evidence (3d ed.), chap. XXI, pp. 595-601, as to the proper tests in such cases. The questions put to the child were designed to give the tests laid down by Wigmore. Considerable latitude must be left to the trial justice on a matter like this, because so much depends upon the impression that the child makes by his behavior on the witness stand. 58 Am.Jur., Witnesses, § 136, p. 102. The late cases in the supplement to the Wigmore text show that children from six to ten years of age are often allowed to testify.
The defendant admits the trial justice followed the right rule but attempts to support its exception by arguing that the testimony of the child that the workman, who was 5 feet 11 inches tall, stood on a chair which was about 18 inches high to work on a ceiling only 6 feet 7 1/2 inches high was so palpably impossible as to prove that the child was not qualified to testify. In order to be in a position to make this argument, the defendant should have moved to strike all the child's testimony as soon as this particular testimony came out. Furthermore, the child said that the workman bent over somewhat and the position in which he held his tool, presumably a boring tool, to reach a place at an angle might well make the child's testimony at least possible. In any evnet we are satisfied that the trial justice did not abuse his discretion and commit error in allowing the child to testify. The defendant's first exception is overruled.
We now turn to defendant's exception to the refusal of the trial justice to direct a verdict for defendant in each case. It treats this exception under five heads and first argues that there was a fatal variance between the declarations and the proof. The declarations allege that the passageway was dimly lighted and that it was negligence on the part of defendant to leave this chair in such a passageway so that a person walking through would be likely to fall over it; and that notwithstanding its duty defendant left the chair in that passageway and as a result of this negligence plaintiff Theresa, having no reason to know that the chair was there, while walking in that passageway tripped over it and suffered the injuries complained of. The defendant's main thrust on this point is that the evidence shows that the passageway was not dimly lighted and that leaving this chair in a dimly-lighted passageway was the nub of defendant's alleged negligence.
We do not agree with defendant that there was a fatal variance. 'Dim' is a relative term. It means between light and dark. One of the primary meanings of 'dim' according to Webster's New International Dictionary (2d ed.) 1946, is 'darkish.' When Mr. Pierce rushed down to...
To continue reading
Request your trial
-
State v. Franklin
...justice had considerable latitude, and much depended, of course, on the impression the witness made upon him. Pierce v. New England Tel. & Tel. Co., 86 R.I. 326, 134 A.2d 421. By the time defendant moved for the appointment of a psychiatrist the witness had testified at length, and the tria......
-
Brierly v. Brierly
...so much depends upon the impression that the child makes by his behavior on the witness stand." Pierce v. New England Telephone & Telegraph Co., 86 R.I. 326, 330, 134 A.2d 421, 423 (1957); see State v. Mandarelli, 105 R.I. 696, 701, 254 A.2d 738, 741 Similarly, we have held consistently tha......
-
State v. Rivera
...Rather, competency is to be determined by the trial justice on a case-by-case basis. See Pierce v. New England Telephone & Telegraph Co., 86 R.I. 326, 330-31, 134 A.2d 421, 423 (1957). In the case under review, Tracy demonstrated her ability to observe and communicate her observations when ......
-
State v. Cabral
...four factors are delineated in 2 Wigmore, Evidence § 506 (3d ed. 1940), and are alluded to in Pierce v. New England Telephone & Telegraph Co., 86 R.I. 326, 330, 134 A.2d 421, 423 (1957); See also State v. Mandarelli, 105 R.I. 696, 701, 254 A.2d 738, 741 The defendant's appeal is denied and ......