Westter v. Harris

• Decision Date: 28 May 1901
• Citation: 23 R.I. 47,49 A. 398
• Parties: WESTTER v. HARRIS.
• Court: Rhode Island Supreme Court

49 A. 398

23 R.I. 47

WESTTER

v. HARRIS.

Supreme Court of Rhode Island.

May 28, 1901.

Action by Stella W. Winter against Lewis L. Harris. Judgment for defendant, and plaintiff prays "for a new trial. Denied.

Page, Page & Cushing, for plaintiff.

Edwin C. Pierce, for defendant.

ROGERS, J. This is an action of trespass on the case for the alleged negligence of the defendant through his servant's so unskill-fully and carelessly driving and managing his carriage on a public highway, in the outskirts of the city of Providence, as to cause it to collide with the plaintiff's buggy, whereby said buggy was damaged, and the plaintiff herself was thrown out and injured, while claiming to be in the exercise of due care. It appeared from the evidence that the accident occurred on Broad street, in Cranston, just over the city line, on March 9, 1898, between 6:30 and 7 o'clock p. m., when the plaintiff, accompanied by Mrs. Helen R. Herrick, was driving a horse and Goddard buggy down Broad street, away from the city, and the defendant's horse and carriage, also a Goddard buggy, was being driven towards the city by his coachman, Edward Ford, who was the sole occupant thereof; that Broad street at the place of the accident is a curbed street, 40 feet wide from curb to curb, running northerly towards Providence, and southerly towards Edgewood, in Cranston; that the westerly portion of the driveway for 24 feet 8 inches is paved with cobblestones, while the remainder of the width of the driveway, 15 feet 4 inches, is macadamized; that the paved surface of Broad street is traversed by double tracks for electric cars, the space between the separate rails of each track being 4 feet 10 inches, and the space between the separate tracks (i. e. between the west side of the east track and the east side of the west track) being 4 feet 2 inches; that all the space, being 9 feet 4 inches, between the west rail of the west track and the west curb of the street, is paved, while extending along the east side of the east rail of the east track is a paved strip 1 foot 6 inches wide; that the width of a Goddard buggy between the outside rims of the hubs is 5 feet 5 inches; that the defendant's coachman was driving on the right-hand (or east) side of the road, near the east curb, but as to how near the evidence is contradictory; that the plaintiff was driving upon the macadamized part of the road, and consequently was driving, as to her, on the left-hand side of the center, measuring from curb to curb; that it was dark, and the street lights were lighted; and that at the time of the accident no electric cars were approaching that were in sight. The evidence showed that the easterly or macadamized portion of the road was the favorite side for travelers, but that the whole width of the street was in order and condition for travel, and was used more or less, though not so much as the macadamized portion. Only the occupants of the two buggies witnessed the accident, and their statements are utterly variant. The plaintiff swore that she was driving on her right, being the westerly portion of the macadamized part of the street, though on the left of the center from curb tocurb; that her horse was walking; that Ford was driving recklessly and unsteadily,?quot;this way and that," to use her own expression, "but Just which way he was driving when I first saw him I cannot say." Mrs. Herrick supports the plaintiff in her claim that her horse was walking, and also that Ford was not keeping a straight course, and she testified: "As I remember it, Mrs. Winter pulled her right rein to the car track. I do not know how he pulled his, but his horse ran right into our shaft." Ford, the defendant's coachman, swore that he first noticed the plaintiff's carriage 40 feet away, coming onto him. "They simply run in and locked wheels," to use his own words. "I hollered to them first, and saw them coming directly towards the horse. I was away out then to the gutter." In reply to the question how he hame to drive into the gutter, he swore: "Because I saw they were coming into me, and I could not get over. If I could get on the sidewalk I would. I did not have time. I could not get on that high bank there. I drove in the gutter, and tried to avoid them." He also swore that his horse was walking, while the defendant "was going as fast as she could, and did not let up any." After a verdict for the defendant, the plaintiff petitioned for a new trial, upon the sole ground that is now urged, of error in the charge of the justice presiding at the jury trial.

The plaintiff requested the court to charge as follows: "(1) The plaintiff was not bound to turn her horse and vehicle across the car track and tracks if that portion of the street where the car tracks were located was not ordinarily and habitually traveled, and if, at the same time, the macadamized portion of the road was ordinarily and habitually traveled, and if, on this occasion, the plaintiff seasonably turned her horse and vehicle to the right of the center of the macadamized portion of the street, leaving ample room for the coachman to pass with his vehicle and horse on her left-hand side. (2) The traveled part of the highway means that part which is regularly and ordinarily used by travelers with carriages, vehicles, and horses."

The judge refused so to charge, but after referring to the character of Broad street, and to the varying character of highways, and especially to highways in the country that were not traversable throughout their whole width, he charged as follows, to which the plaintiff objected, viz.: "The traveled part of Broad street for carriages is between the curbstones on the east and west; there is the traveled part of...