141 A. 331 | R.I. | 1928
In these cases tried together, plaintiff Mary recovered a verdict for $8,000 and plaintiff Charles, her husband, one for $1,500 against defendant. The basis *148 of recovery was alleged negligence of Mr. Roberts, a servant of defendant, in leaving open a trap door in a dark back room of Charles's store where the servant had been sent to relocate a certain telephone set. Into the opening fell plaintiff Mary, who claimed to be entirely ignorant of the existence of the trap door. At the time she was working for her husband, who was present in the store. He did not see her fall. Her recovery was for personal injury; his, for loss of her services.
On defendant's motion for a new trial the Superior Court said the weight of credible testimony was with defendant whose only witness was its servant, that substantial justice had not been done and granted defendant's motion in each case. Plaintiff claims error in the trial court's action in granting the motions for new trials.
On the evidence unless something about plaintiff Mary's manner indicated that she was not truthful, she was not guilty of contributory negligence. The open trap door created an unobservable hole in a dark room dangerous to Mrs. Kimatian who was entitled to enter said room, who did not know even of the existence of the trap door and, if knowing thereof, had no reason to know that it was open. A storekeeper's duty to an invitee to the store was stated in Langley v. Woolworth,
The one common and vital question in both suits before us was not whether Kimatian knew Roberts had gone to the cellar a second time but whether Roberts did anything which a prudent and reasonable man would not have done or failed to do anything which a prudent and reasonable man would have done in performing the work which defendant sent him to do. Unless he was remiss the defendant company was not negligent. Roberts did not claim that he asked Kimatian or that Kimatian agreed to guard the opening. Roberts' testimony was merely that he supposed Kimatian would do so the second time as he had done the first time. One question for the jury, therefore, was whether Roberts reasonably might have anticipated that Kimatian would protect the opening from becoming a source of danger to persons rightfully entering the back room. Another was, whether Roberts had any reason to anticipate the presence of any person other than Kimatian in said back room. In this respect there is a distinct difference as far as defendant is concerned between cases of open coal holes in the sidewalk where travelers must be anticipated and an open trap door upon private premises the use of which is known solely to the owner and can not be anticipated by the independent contractor. This 'phone though *150 at times used by, was not held out for use of, the public. It was Kimatian's private 'phone. Its use by others was only permissive. After its removal from the wall with Kimatian's knowledge Roberts reasonably could anticipate that if any one entered and asked to use the telephone he would be informed that it had been taken down.
If Kimatian assured Roberts that no one came into the back room, it would not be unreasonable for Roberts to rely thereon. On the record before us an issue was sharply raised, — whether Kimatian did so tell Roberts. Roberts affirmed this, Kimatian denied it. If Roberts' testimony was true it was not negligence merely to leave open the trap door in the back room. Prue v.Goodrich Oil Co.,
The cases of Howard v. J.H. Harris Plumbing Co.,
In view of the peculiar facts in the present cases it seems to us undesirable to try them together. While they possess the common element of defendant's alleged negligence, the question of Mary's and Charles's freedom from contributory negligence is not identical. Conceivably Mary might recover and Charles be denied recovery. Trial together tended to confuse court, counsel and particularly the jury. The interests of justice in these cases seem more likely to be promoted by separate trials.
In each case the plaintiff's exceptions are overruled and the case is remitted to the Superior Court for a new trial.