125 A. 82 | R.I. | 1924
This action of trespass on the case for negligence is brought to recover damages for personal injuries sustained by the plaintiff on account of being struck by a truck driven by the defendant's servant. After a trial *84 in the Superior Court the jury returned a verdict for the plaintiff. The defendant's motion for a new trial was denied by the trial justice and he has brought the action to this court by his bill of exceptions.
Plaintiff testified that about 7:30 o'clock a.m. on the first day of March, 1918, he was walking in a westerly direction on the right-hand edge of the macadam in the state highway in the village of Slatersville, because the sidewalk was muddy; that the trolley car rails were on his right; that he heard a noise and turned and saw a truck coming towards him; that he jumped away from the truck towards the middle of the car track and before he knew it he was knocked down and injured.
The driver of the truck testified for the defendant and said that as he approached plaintiff from the rear he sounded his horn and the plaintiff stepped a little to his right side; that he had ten feet in width of good road in which to pass plaintiff on his left; that as he drove past him there was about two feet clearance and that as the front part of the truck passed him its rear end skidded about a foot to the right; that he looked back and saw the plaintiff getting up and he stopped the truck and assisted the plaintiff to get to a doctor's office near by. He testified that there was no ice on the ground, that he did nothing to cause the truck to skid and that there was nothing he could have done to prevent its skidding. The only other person who saw the accident testified that the plaintiff was struck by the rear end of the truck.
The defendant claims that the testimony does not prove that his servant was negligent in the operation of the truck, and that it shows that the plaintiff was guilty of contributory negligence in not going further to the right to avoid being hit by it; and consequently that the trial justice erred in not granting his motion for a directed verdict.
It is well established that pedestrians have in general, and under reasonable restrictions as to exercise of care by them, a right to travel anywhere upon a public highway, *85
and it is negligence for a driver of a vehicle upon a public highway to recklessly run upon a pedestrian who is standing or walking with his back toward him. Berry Automobiles, 2nd ed. sec. 220; Hall v. Albertie,
The place where the plaintiff was walking would ordinarily be safe. It cannot be said that his failure to anticipate that the defendant's servant would drive his truck so close to him that it might strike him if it skidded was a want of due care. Under the law and the evidence the question of plaintiff's negligence was a question of fact for the jury and not of law for the court. Defendant's servant testified that the macadam road was ten feet wide where he passed the plaintiff. No vehicle was approaching at the time, and he gives no reason why he did not drive the truck more to the left of the plaintiff when he attempted to pass him. The question of the negligence of defendant's servant, in the circumstances, required the submission of the case to the jury. Defendant's exception to the denial of his motion for a directed verdict is overruled.
Defendant presses his exception to the denial of his motion for a new trial on the grounds that the verdict is against the law and the weight of the evidence. There is sufficient testimony in the case to support the verdict. The decision of the trial justice on the motion for a new trial does not appear to be wrong, and under authority of Wilcox v. R.I. Co.
Defendant claims an exception to the refusal of the trial justice to charge the jury that the plaintiff could recover no damages for pain sustained in 1919 and 1920. There is no merit in this exception. The writ is dated October 10, 1919, and it is beyond question that the plaintiff was entitled to recover damages for pain sustained up to the date of the writ. *87
All of the defendant's exceptions are overruled and the case is remitted to the Superior Court with direction to enter judgment for the plaintiff on the verdict.