213 F. 763 | 1st Cir. | 1914
The plaintiff in error (hereinafter called defendant) has not insisted at the argument upon the first two of his assignments of error, being those based upon the overruling of his demurrer to the declaration.
The declaration was in trespass on the case for personal injuries sustained by the defendant in error (hereinafter called plaintiff) on October 31, 1910, on Union street, in Providence, R. I., through being run into by an automobile while himself exercising due care. According to the declaration, the car was the defendant’s, operated at the time by his servant or agent, and so negligently operated as to run into the plaintiff. The case went to trial on the defendant’s plea of not guilty. The jury found him guilty, and assessed $3,500 damages.
It was not disputed that the plaintiff was run into and injured at the above time and place by a car registered in the defendant’s name in Rhode Island, and driven at the time by one Stuart Angelí, since deceased before the trial, who was its only occupant at the time. The defendant denied in his testimony that Angelí was in his employ.
There was uncontradicted testimony by the defendant, or on his behalf, in substance as follows:
“That Stuart Angelí asked for a license to run the ear, and that said Angelí was in your employ, was hired by you to run your car No. 6261.”
The plaintiff was also permitted, against the defendant’s objection, to testify that neither the defendant nor any one acting for him ever denied to him either that this was the defendant’s car, or that Angelí was in his employ as chauffeur at the time, as stated in the above letter. Of the admission of this letter and testimony the defendant complains as error.
The defendant’s objection is based upon the contention that because the passage above quoted from the letter was part of a statement of
“If the jury believes the testimony of the plaintiff as to his actions immediately prior to the occurrence of the accident (that is, that he started across a crowded street, in a busy section of the city, without looking to see whether a vehicle was approaching which might be likely, to strike him), the plaintiff was guilty of negligence, which will prevent him from recovering in this action, unless it can be found from the testimony that the driver saw, or in the exercise of due care might have seen, the plaintiff in time to avoid striking him.”
The court refused to instruct, as requested by the defendant, that, if the jury believed the plaintiff’s testimony recited in the instruction just quoted, the plaintiff was guilty of negligence which resulted in his injury, and could not recover.
The court also refused to instruct, as requested by the defendant, that there was no evidence that Angelí saw the plaintiff in time to avoid him, or might have done so had he exercised due care, or that Angelí did not appear from the testimony to have been guilty of any negligence, or to rule that the verdict should be for the defendant. On the above requests are based the remaining assignments of error.
There was evidence from which the jury might have found that Angelí did not blow his horn when the car turned in to Union street, nor from that time until it struck the plaintiff, and-from which they might also have found that instead of keeping on the westerly or left-hand side of Union street, and thus passing behind the plaintiff, he attempted to cross from the left to the right side of the street, and'to pass between the plaintiff and the right curb, toward which the plaintiff was
Whether Angelí might thus have seen him in time or not appears, at any rate, to have been the only issue submitted to the jury on this part of the case. The opinion of the District Court referred to states as follows:'
“The jury was definitely instructed that the plaintiff whs negligent in stepping into the street, looking only ahead of him, and that, in order to hold the defendant liable, they must find that, after discovering the plaintiff in the street, the chauffeur had a fair opportunity to avoid him, and negligently failed to do so.”
We agree with the District Court in what immediately follows the above in its opinion:
“It seems to me that the question, though perhaps close, was purely one of fact and within the province of the jury to decide, and that it cannot be said, as matter of law, that the evidence was insufficient to support the verdict in this respect.”
The defendant has relied here upon a calculation claimed by him to show that the plaintiff could not have been more than 26 feet in front of the car when he stepped from the sidewalk, and that the time which Angelí had for thinking and acting was “extremely short, only three seconds, more or less.” The District Court assumes in its opinion that the jury might have found 26 feet at least to be the distance from the point where the car turned from the left to the right side of the street to the point where the defendant was struck; that its rate of speed was reasonable under the circumstances, and therefore a low rate, under which stopping would have been easier than at a high rate. The distance, the rate of speed, and the opportunity for avoiding the plaintiff were all matters for the jury in their bearing upon the question submitted to them, and we can find no error on the part of the court in submitting it under the proper instructions which we must assume to have been given.
The defendant has contended here that the “doctrine of ‘last chance’ is not applicable to the undisputed facts of the case.” But he appears by the record to have invoked it himself.
It follows from what has been said that there was no error in refusing to direct a verdict on the whole case for the defendant. We are therefore unable to sustain any of the exceptions.
The judgment of the District Court is affirmed, with interest, and'the defendant in error recovers costs in this court.