White v. Alexion, 9246

• Decision Date: 10 April 1952
• Docket Number: No. 9246,9246
• Citation: 79 R.I. 297,87 A.2d 853
• Parties: WHITE v. ALEXION et al. Ex.
• Court: Rhode Island Supreme Court

Page 853

87 A.2d 853

79 R.I. 297

WHITE v. ALEXION et al.

Ex. No. 9246.

Supreme Court of Rhode Island.

April 10, 1952.

Arcaro & Belilove, Abraham Belilove, Providence, for plaintiff.

A. Louis Rosenstein, Leo L. Jacques, Providence, for defendants.

CONDON, Justice.

This is an action of trespass on the case for negligence brought by a servant against his masters for personal injuries sustained by him in the course of his employment at their bottling shop. Since the defendants did not come within the provisions of the Workmen's Compensation Act, Gen.Laws 1938, c. 300, art. 1 et seq., the case was tried in the superior court under the principles of the common law governing the relation of master and servant. The jury returned a verdict for the plaintiff in the sum of $4,970. Thereafter defendants duly filed a motion for a new trial which was denied by the trial justice. The case is here on their bill of exceptions containing an exception to such denial and numerous other exceptions to rulings of the trial justice, to his charge to the jury, and to his refusal of several requests to charge.

In all, the bill sets out twenty-five separate exceptions but defendants are pressing only fifteen, the remaining ten being expressly waived. In their brief they have renumbered those on which they rely from 1 to 15 inclusive. As a result, such numbering does not correspond to the exceptions as they appear in the bill of exceptions. This causes confusion and entails upon this court unnecessary labor in reconciling the numbering of the exceptions. We do not approve this practice. We took occasion to say so plainly in Savard v. Industrial Trades Union of America, 76 R.I. 496, 72 A.2d 660, where in our treatment of the exceptions we reluctantly followed such a renumbering. In this instance, however, we shall follow the numbering in the bill because we do not wish to tolerate a practice which, in our opinion, has nothing to commend it.

The defendants have briefed and argued their exceptions under eight points. Exceptions numbered 3, 4, 6, 7, 8, 9, 10 and 12 to rulings excluding certain testimony are grouped under point I. Exception 11 to the ruling admitting certain testimony is treated singly under point II. Point III relates to an alleged error in the trial justice's charge which is the subject of exception 17.

Points IV to VII inclusive relate to the refusal by the trial justice of defendants' four specific requests to charge. Incidentally, those requests are not with the papers in the case nor are they incorporated in the transcript. For a knowledge of their contents we have been forced to rely upon the statement in defendants' brief which is not disputed. However, to avoid possible controversy in this court over the contents of requests to charge they should always appear either in the transcript or with the papers in the case. Since there is no controversy in this instance we shall consider each request as it appears in defendants' brief.

Point VIII consists of exceptions numbered 22, 23, 24 and 25. Those exceptions, however, amount to no more than one exception to the denial of the motion for a new trial. Defendants mistakenly have excepted separately to the denial of each ground of their motion for a new trial. One exception to the denial of the motion, regardless of the number of the grounds of such motion, is sufficient for a review by this court of the trial justice's decision on all grounds presented in the motion and argued to him. See Kenyon v. Parzych, 69 R.I. 139, 31 A.2d 476, and Dubee v. Feinstein, 61 R.I. 214, 200 A. 528.

We shall treat each of those points in the above order after first summarizing briefly the main facts of the accident out of which plaintiff's cause of action arose. On May 11, 1950 at about 3:45 p. m. plaintiff, while operating a bottling machine in defendants' shop, was injured by a piece of flying bottle glass. He was filling siphon bottles with carbonated water when one of the bottles exploded and a fragment of glass about one-quarter inch thick struck his upper right forearm and severed the ulnar nerve together with its blood vessels. The machine which he was operating was equipped with a cage or basket that was designed to protect the operator of the machine in the event of such an accident. The basket was secured by a clasp or clamp which was required to be closed or fastened in order to afford the operator such protection. On this occasion the basket was not so clamped or fastened, as plaintiff claimed it was out of repair and had been for some time before the accident. He claimed that defendant Alexion had promised to have such repairs made if he, plaintiff, would come to work for him. This was slightly more than two weeks before the accident. It seems that defendants had bought the bottling shop about January 1, 1950 from a former employer of plaintiff and that such employer had recommended plaintiff to defendant Alexion. Alexion denied that he had made any such promise and testified further that the clamp on the basket was working properly on the day of the accident and was not in need of repair.

Apparently plaintiff tried his case on the theory that the bottling machine was not a reasonably safe tool with which to work unless the clamp on the basket was in good working order; that he called Alexion's attention to the dangerous defect before he agreed to go to wrok; that he went to work on condition that the defect would be repaired in a reasonable time; that in so doing he did not assume the risk of the dangerous machine, provided the time which elapsed from the date of his beginning to work on the machine until the date of the accident was not so unreasonably long as to put him upon notice that defendants were not going to make repairs; and that such elapsed time of a little more than two weeks before plaintiff was injured was not unreasonable. On this theory plaintiff was bound to prove each of the above elements by a fair preponderance of the evidence, and of course he had to prove that the clamp on the basket was not in good working order on the day of the accident.

Under point I, exception 3, defendants contend that it was prejudicial error for the trial justice to exclude in cross-examination of plaintiff a question as to whether he had told defendants when first employed by them that he knew more about the bottling business then they did. This comparative knowledge of such business had no relevancy to the issues on trial and was properly excluded.

Exception 4 is to the exclusion of another question in cross-examination of plaintiff as to whether either of defendants had not occasionally warned him that he was operating the machine without closing the basket. Assuming without deciding that such question was proper cross-examination and that it was error to exclude it, we are nevertheless of the opinion that it was not prejudicial in the circumstances, especially since later in cross-examination of plaintiff's witness James B. King and in their own direct examination defendants developed the fact...