8 A. 831 | R.I. | 1885
This is an action on the case to recover damages from the town of Bristol for injuries to the plaintiff, alleged to have been received by him while walking in one of the streets of said town, in consequence of the neglect of the town to keep said street safe and convenient for travel. The case was tried to a jury in the Court of Common Pleas, when the plaintiff recovered a verdict for $3,500 damages. The case comes here on exceptions to the rulings of the court taken by the defendant. The accident occurred February 5, 1884. The plaintiff left his house between eight and nine o'clock A.M., to carry some tea to his wife, who worked in a mill. The street was covered by a thin film of ice, caused by rain falling and freezing the previous night. The plaintiff's route was through Thames Street, along the west side, which the plaintiff selected as the safer side. Testimony was adduced by the plaintiff tending to show that Thames Street, on its west side, where it corners on State Street, was washed and gullied, with cobble-stones left exposed in the gully, some part of which was nearly a foot deep. The plaintiff made his visit to the mill, and was returning, when, stepping on one of the stones so exposed, he slipped and fell, dislocating his right his and injuring his foot. He adduced testimony to show that the fall would not have occurred but for the gully, or if it had occurred would not have seriously injured him. The defendant moved for a nonsuit, which was refused. The defendant alleged exceptions, but, upon our intimation that exceptions do not lie for a refusal to nonsuit, they are not pressed. Wentworth v. Leonard, 4 Cush. 414; Priest v. Wheeler,
Exceptions overruled.
At the September Term, A.D. 1885, the defendant presented to this court his petition for a new trial in the Court of Common *86 Pleas, on the ground of newly discovered evidence, and because the verdict was against the evidence, and was excessive in amount. The petition was granted.
The new trial resulted in a verdict for the plaintiff, and the case was again brought to this court on exceptions taken by the defendant.
EXCEPTIONS to the Court of Common Pleas.
Providence, January 11, 1987.
DURFEE, C.J.
This is an action on the case to recover damages for an injury suffered by the plaintiff by falling while walking on the sidewalk of one of the streets of Bristol, in consequence, it is alleged, of a defect in the sidewalk. It is the same case which was before the court on exceptions at a former term, and which was subsequently, on a petition for a new trial remitted to the Court of Common Pleas for new trial. The new trial has been had, and the case is again before us on exceptions.
At the trial the parties on both sides put in their testimony and rested; whereupon the defendant asked the court to direct a verdict in his favor, for the reason that there had been no proof that the place of the accident was within a public highway. The court permitted the plaintiff to put in further testimony for the purpose of supplying the omission. The plaintiff called a witness who testified in chief that he had been a councilman of the town of Bristol; that he knew what streets were highways there; that the street where the accident occurred was a highway; that it had been such for nearly two hundred years; and was at one time the main street of the town. In cross-examination he testified, in reply to a question whether he knew how it became a highway, that it was by deed of gift from the first proprietors; that the land comprising the town was bought by four proprietors; that they deeded to the town, by published deed, certain highways as main streets, and that this was one of those streets. He admitted that the use of the street had diminished in more recent times, but testified in effect that it was still in common use as a street. The defendant sets forth in his bill of exceptions that he objected to the opening of the case, as above stated, for further testimony, and excepted to the court's permitting the witness to testify, to the witness's testifying when called, and to *87 his testimony. The court, however, in allowing the bill of exceptions, states that it is allowed in connection with the report of evidence and charge; and a reference to the report of the evidence, which seems to be verbatim, does not disclose any objection to any question put to, or to any answer given by, the witness last called.
We are of the opinion that it was entirely within the discretion of the court to open the case for further testimony. The counsel for the plaintiff says, in excuse for the omission, that it was conceded at the former trial, without contest, that the place of the accident was a part of the public highway, and he was thus put off his guard. It is quite common for the court to allow a party to submit further testimony after he has rested, when his opponent attempts to take advantage of some formal point which has been inadvertently overlooked, since it is, or ought to be, the aim of the court, in ordering the course of proof, to further, not defeat, the ends of justice. Town of Hopkinton v.Waite,
In the course of the trial the defendant asked a witness, called by him, if the plaintiff was a man of intemperate habits. The plaintiff objected, and the court sustained the objection. We do not think the court erred. If the plaintiff was sober when he fell, the fact that he was of intemperate habits would not preclude his recovering; and we do not think the mere proof that he was of intemperate habits would warrant the inference that he was not sober. The accident occurred in the early morning, and the sidewalk was admittedly glazed with ice.
Other exceptions are for refusals to instruct the jury as requested by the defendant. The charge given by the court is reported in full in the bill of exceptions. In our opinion it fully and correctly covers all the contested points of the case. It not only instructs the jury generally in the law as laid down by this court in the former trial here, but also particularly as follows, to wit: that the jury, in order to find for the plaintiff, must, besides finding that the place of the accident was a part of the public highway, find that the highway was defective there; that the defect was the cause, or one of the approximate causes, of the accident; and that the plaintiff did not contribute to the accident by any fault of his own. We think the instructions given were all that the case required, and that the instructions requested, in so far as they differed from the instructions given, were properly *89 refused for that reason; and, in so far as they were the same in effect, though couched in different language, were properly refused because they were superfluous, or because they were calculated to embarrass and confuse the jurors. A request may embody a proposition which is good law, and which is entirely applicable to the case, and yet be properly refused because it merely repeats an instruction already given, in language less suited to the comprehension of the jury, or because, while repeating, it dislocates the instruction from its connection with the rest of the charge, so that the jury may not appreciate its proper bearing. And this remark is especially applicable to requests which present abstract statements of the law taken from legal text-books or opinions expressed in learned or technical phraseology, rather than in the plain vernacular of the people.
One exception is because the court, though requested, refused to instruct the jury as follows, to wit: "If a person knows a way to be dangerous when he enters upon it, he cannot in ordinary prudence proceed and take his chance, and, if he shall actually sustain damage, look to the town for indemnity." The instruction requested is an abstract proposition. As applied to the case it means, of course, that the plaintiff was not entitled to recover if he knew, when he went upon the sidewalk, that it was dangerous for him to walk upon it by reason of the ice and hole there; because for him to do so, knowing this, was contributory negligence, or a voluntary assumption of the risk. We think the court did right in leaving the matter to the jury to decide instead of deciding it as a matter of law. Undoubtedly there are acts which so unquestionably amount to contributory negligence that the court may say they amount to it; but we do not think the plaintiff's act was one of them. See cases cited for the plaintiff on this point.1 Exceptions overruled.
