Savage v. R.I. Co.

Citation28 R.I. 391,67 A. 633
PartiesSAVAGE v. RHODE ISLAND CO.
Decision Date02 July 1907
CourtUnited States State Supreme Court of Rhode Island

Exceptions from Superior Court, Providence County.

Action by Mattie A. F. Savage against the Rhode Island Company. There was a judgment for plaintiff, and defendant brings exceptions. Sustained, and cause remitted for new trial.

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

Gardner, Pirce & Thornley, Frank S. Arnold, and Davis G. Arnold (William W. Moss, of counsel), for plaintiff. Henry W. Hayes, for defendant

PARKHURST, J. This is an action brought under the statute by the plaintiff as administratrix of the estate of William H. Savage, and for the benefit of herself as his widow, to recover damages for his death, alleged to have been due to the defendant's negligence. It was tried before a jury in the superior court for Providence county, December 19, 20, and 21, 1906. It appears by the testimony in the case that Savage, the plaintiff's intestate, a man 24 years old, bad entered the employ of the defendant as conductor, Saturday, July 18, 1903, the day before he was killed, and was put on the line between Providence and Crescent Park. He made three round trips with George L. Phillips, an experienced conductor, during the afternoon and evening of that day, and the next day (Sunday) he took full charge of a car. On the trip when he was killed he left Crescent Park with his car, an open bloomer car, a little before 6 o'clock in the evening. The car was crowded, and men were standing on the running board. Along Pawtucket avenue, in the vicinity of the place of the accident, the track for cars coming toward Providence was on the east side of the street next to the sidewalk, not far from a series of poles carrying electric light wires. According to the rules of the defendant company, the running board was down on the right side next to the sidewalk and the poles, and on the left side the running board was up and the bar at the end of the seats down. As the car was traveling in the neighborhood of Mr. Henry Ide's house, which is on the west side of Pawtucket avenue, the conductor, Savage, went along the running board collecting fares or giving out transfers, and had to pass outside of a man standing on the running board. As he did so his head collided violently with an electric light pole, belonging to the Narragansett Electric Lighting Company, located beside the track, and he was knocked to the ground. When the car had been brought to a stop 200 feet or more beyond the pole, several men went back and carried him into Mr. Ide's house. He had one or two severe wounds on the right side of his head, and died shortly afterwards without regaining consciousness. The pole with which Savage collided was somewhat nearer the track than other poles along that street. It had been in the same position at least all that summer, and apparently for a number of years, and it was enough nearer to the track than other poles in its vicinity so as to be the subject of special warning to the plaintiff's intestate to look out for it himself and to warn his passengers of it when they were upon the running board. The jury found a verdict for the plaintiff for $5,000. The defendant then filed a motion for a new trial, on the grounds that the verdict was contrary to the evidence, and the weight thereof; that the verdict was contrary to the law; and that the amount of damages was excessive. This motion was overruled, and the defendant's exception noted. The case is now before this court on a bill of exceptions filed by the defendant, and allowed by the court, incorporating all the exceptions taken by the defendant throughout the case.

The main questions are: (1) Was the verdict so clearly against the evidence that a new trial should be granted by the Supreme Court on that ground? (2) Were the damages awarded so clearly excessive that a new trial should be granted on that ground? (3) Was the burden upon the defendant to prove that the deceased had notice of the dangerous proximity of the pole to the track, if that was an extraordinary risk and not an obvious one, or was the burden upon the plaintiff to show that the deceased had no such notice? (4) Did the jury have the right to disbelieve the testimony of the witness Phillips, that he pointed out the pole to the deceased and warned him of the danger from it, or were they bound to accept his testimony as conclusive on that vital point in the ease? (5) Was there any reversible error in the numerous exceptions, or any of them brought up by the bill of exceptions? A careful reading of the record of testimony convinces us that the verdict was against the weight of the evidence. As relating to the question whether the plaintiff was married to William H. Savage, and so entitled to sue for her own benefit as his lawful widow, there was sufficient evidence to warrant the jury in finding for the plaintiff on that point.

1. On the question of contributory negligence, however, we are satisfied that the plaintiff has not proved that the deceased was in the exercise of due care at the time of the accident. So far as the evidence introduced by the plaintiff is concerned, it does not appear that the deceased conductor, at the time he was on the running board, took any precautions whatever by looking ahead to see whether he could safely swing out to pass by a passenger standing upon the running board at the time when he did so attempt to pass and was injured. It must have been known to him that there were poles and trees and similar obstructions all along the line of the road; and, while he would be justified (in the absence of special warning or of actual knowledge) in assuming that he could safely stand and pass along the running board without danger in the ordinary way, he would not be justified in assuming that he could at any time or place swing out to any distance he might find convenient for the purposes of passing passengers standing upon the running board. If it became necessary, as it often is, so to swing out and pass, it would plainly be his duty to look ahead and see that he could pass safely in that manner. The testimony does not show that the pole in question was so near as to endanger passengers standing straight upon the running board. In fact, it shows the contrary, for it appears that there were several persons standing upon the running board at this time, none of whom were hurt, including the passenger around whom the deceased was passing at the time of the accident; and it also appears that no one had previously been hurt at that point, so far as the witness Phillips knew, who was the only witness called who had had long experience on this particular line. It therefore appears that the accident was not due solely to the proximity of the pole to the car, but to the act of the plaintiff's intestate in voluntarily placing himself in a position of more than ordinary danger, from which the simplest precaution would have saved him. There was also the positive testimony of the defendant's witness Phillips that on the previous day when said Phillips had the deceased under instruction, he had warned the deceased as to the proximity of this particular pole when he was passing along the running board while the car was approaching the pole, and that the deceased so warned passed it in safety. As the testimony of the witness Phillips is the subject of special attack on behalf of the plaintiff, it will be further considered hereafter.

The plaintiff also insisted, against objection by defendant, upon putting in evidence of the speed of the car at the time of the accident, showing by several witnesses an estimated speed of from 15 to 25 miles per hour. In making the offer of this testimony, and in support of its admissibility, the plaintiff's attorney said (Rec. p. 29): "The allegation is that it was running at a high rate of speed, and has bearing on contributory negligence or the negligence of the conductor in allowing himself to be hit. It is quite material, I think, to consider whether the car was running at a low speed where he could easily protect himself, or whether it was running at a high speed where obstacles of the road could come upon him quickly." The court allowed the testimony so offered to be put in.

2. The element of speed is not made a part of the allegations of the defendant's negligence in any count of the declaration; nor could it have been properly so made, because the speed of the car was subject to the control of the conductor. He had full right to regulate the speed of the car as he saw fit, to slow down or even to stop, if necessary, in order that he might safely collect his fares. In the event of a very crowded car, with many people standing upon the running board, in view of the danger of losing hold, or being jolted off the car while in motion, or in view of the danger of hitting obstructions near the rail in passing them, when it was necessary to pass around persons so standing, it might frequently be necessary to stop the car until fares could be safely collected, and the conductor would have a perfect right so to do. The speed of the car must at all times be subject to the control of the conductor, both because of the duty to obey municipal ordinances relating to speed, and because it might often be necessary to lessen the speed as a matter of safety to the passengers as well as to the conductor himself. If the testimony as to speed was properly admissible at all, and was in any way an element in contributing to the accident, it was evidence of contributory negligence on the part of the conductor himself. We can see no other way in which such testimony throws any light upon the situation. It would seem that the plaintiff's attorney, and probably the court, had in mind the more common case of the passenger injured or killed by negligence involving a consideration of excessive or dangerous speed, when the passenger has, of course,...

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