Wilbur v. R.I. Co.

• Decision Date: 29 May 1905
• Parties: WILBUR v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

61 A. 601

27 R.I. 205

WILBUR

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

May 29, 1905.

Trespass on the case for negligence by Sarah A. Wilbur against the Rhode Island Company. On demurrer to declaration. Sustained.

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

Irving Champlin, for plaintiff. Henry W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant

JOHNSON, J. The declaration in this case sets out, in substance, that the defendant was negligent in providing, without the plaintiff's knowledge and without any warning to her, a car with a defective running board or step, wherein there were certain apertures, projections, and defects negligently made, or permitted to be and remain, by the defendant, the nature whereof was and is unknown to the plaintiff, and she cannot more particularly describe the same, and that said car has remained in the defendant's possession; that she has never examined it, nor had an opportunity to examine it and has never seen it, except at the time set out in said declaration; and that, while she was a passenger on said car and in the exercise of due care, and while ignorant of the existence of said apertures, projections, and defects, and while alighting from said car at the end of her journey, her foot or shoe was caught upon said running board or step by reason of said apertures, projections, or defects, whereby the heel of her shoe was torn off, and she was violently thrown from said car to the ground and injured; and that the defendant knew, or, if in the exercise of due care, would have known, of the existence of said apertures, projections, and defects. To this declaration the defendant demurs, on the grounds: (1) That it does not appear in and by said amended declaration what the apertures, projections, and defects were, as referred to in said declaration. (2) From all that appears in said amended declaration the defendant was not guilty of any negligence whatever.

1. The plaintiff contends that, as it appears in the declaration that while alighting from the car the heel of the plaintiff's shoe was caught in the running board, whereby it was torn off, and the plaintiff was thrown to the ground and injured, and that the car has always been in the exclusive possession of the defendant, and that she never saw it before nor after the time she was injured, and has had no opportunity to inspect it, and therefore does not know and cannot state the exact cause of the accident, therefore the case comes within the class of cases to which the maxim "res ipsa loquitur" applies. In support of this contention the plaintiff's counsel cites: Cox v. Providence Gas Co., 17 R. I. 199, 21 Atl. 344; Parker v. Providence & Stonington Steamboat Co., 17 R. I. 376, 22 Atl. 284, 23 Atl. 102, 14 L. R. A. 414, 33 Am. St. Rep. 809; Ellis v. Waldron, 19 R. I. 369, 33 Atl. 869; Kearney v. London, etc., Ry. Co., L. R. 5 Q. B. 411, and numerous other cases. In Cox v. Providence Gas Co., the plaintiff was injured, while at work as an employs of the defendant at its gasworks, in consequence of an explosion of a tank in the ground near where he was at work. The fact that the plaintiff was injured did not speak for itself so as to impute negligence to the defendant; but the attendant circumstance that the injury was caused by the explosion of a tank belonging to the defendant and under its control brought it within the class of cases to which the maxim applies.

In Parker v. Providence & Stonington Steamboat Co., there was a collision in the public waters of the state, the declaration charging that the defendant's servants so negligently and carelessly navigated its steamer that it ran upon and sank the vessel of the plaintiff's testator, without stating particularly in what the negligence consisted; and the court says (page 377, 17 R, I., page 284, 22 Atl., 14 L. R. A. 414, 33 Am. St Rep. 869): "This raises a presumption of negligence, nothing appearing to the contrary, because of the defendant's control of the agent of the injury, and because such accidents do not occur without negligence." In Ellis v. Waldron, the injury complained of was caused by the fall of an elevator, and the court says (page 371, 19 R. I., page 869, 33 Atl.): "The mere fact that the...