Wilcox v. R.I. Co.

• Decision Date: 19 October 1908
• Citation: 70 A. 913,29 R.I. 292
• Parties: WILCOX v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

70 A. 913

29 R.I. 292

WILCOX

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

Oct. 19, 1908.

Exceptions from Superior Court, Providence and Bristol Counties.

Trespass for assault and battery by Ellanor F. Wilcox against the Rhode Island Company. Verdict for plaintiff. Defendant's motion for a new trial was denied, and defendant excepts. Exceptions overruled, and cause remitted, with directions to enter judgment on the verdict.

Argued before DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

James A. Williams, for plaintiff.

Joseph C. Sweeney and Alonzo R. Williams, for defendant.

DUBOIS, J. This is an action of trespass for assault and battery, brought by the plaintiff to recover damages for injuries inflicted upon her July 25, 1904, in the town of Warwick, by a car conductor in the employ of the defendant. The case was tried before Mr. Justice Brown and a jury in the superior court in Providence county, and a verdict was rendered for the plaintiff for $2,000 damages. The case is now before this court upon the defendant's exception to the ruling of said justice denying the defendant's motion for a new trial upon the grounds that the verdict was against the evidence and the weight thereof and that the damages awarded by said verdict were excessive.

It is claimed by the appellant that on the day in question she and her mother, together with her son, a boy about nine years of age, were about to become passengers upon one of the defendant's cars at Oakland Beach for the purpose of riding to Providence, and that after her mother and son had boarded the car, and while she was in the act of boarding the same, together with a small "Esquimaux Shepherd" dog, for which she had a proper pass, and which she held by an old soft clothesline wound around her hand, and had reached the rear platform, the conductor, without warning, grabbed the dog and threw it bodily from the car, which caused her to turn, and then pushed her from the car to the station platform, upon which she fell violently upon her right knee, which was thereby rendered permanently lame. The plaintiff's story of the assault is corroborated by her mother and son, and her statement of the injuries sustained is confirmed by Dr. George D. Hersey, who testified that he examined her within a week of the alleged assault, and found contusions and bruises on the knee joint, and that he treated her during August, September, and October, 1904, and that after that he has seen her at intervals when she has been at his office, and that she has a stiff knee, which is a permanent injury.

The story of the plaintiff and her witnesses is denied by the conductor; but the motor-man and baggage master of the defendant, and the messenger of Adams Express Company, who were in or about the car, merely deny seeing anything of the kind. William D. F. Aldrich, Jr., the motorman, testified in relation to the matter as follows: "Q. 25. On that morning in question did you know of any person receiving injury on your car by being thrown off the car? A. I didn't know anything about it; no, sir. Q. 26. On that morning in question was there any complaint made in your presence, or that you knew of? A. No, sir; there was not." Edward Russell, the baggage master, testified concerning the same as follows: "Q. 4. Do you remember the occurrence of Mrs. Wilcox, the plaintiff in this case, her mother, an elderly lady and a dog, boarding your car at Oakland Beach? A. Well, I remember at Oakland Beach we stopped there, and there was a trunk on the platform belonging to Mrs. Wilcox, and I put the trunk aboard the car, and got out and looked out of the door, and there was a lady standing on the platform and a dog—a shepherd dog—and I got out of the baggage room door and goes back to get the dog to bring it up in front in the baggage department, and she said— Q. 5. When you had put the trunk aboard, and had gone back to get the dog, where was the lady—where was she? A. The lady and the dog was on the platform of the station. Q. O. Of the station? A. The station; yes. Q. 7. How near the car? A. Well, I should say eight or ten inches from the car." And Frank Tucker, the express messenger, in relation to the same, gave the following testimony: "Q. 18. Did you know anything about any injury that day? A. No, sir."

In support of its...