148 A. 315 | R.I. | 1930
This is an action in trespass to recover for damage to plaintiff's automobile caused by a collision with an automobile owned and operated by one Morris Feinberg, doing business under the name of National Wholesale Confectionery Co.
The declaration is in trespass; the plea is the general issue. The case was tried by a jury. The trial justice directed a verdict for the defendant on the ground that trespass would not lie as the injury to plaintiff was not intentional. The case is here on the plaintiff's bill of exceptions; the only exception is to the direction of the verdict.
The collision occurred at the junction of Branch avenue and West River street in Providence. The day was clear, there was no other traffic on the street and the view was unobstructed.
Plaintiff based his action on the negligence of defendant; he did not claim that the injury was intentional. Defendant claimed that the plaintiff was negligent.
General Laws 1923, Chapter 333, Section 26, provides that when a plaintiff has reason to doubt whether his action should be in trespass or on the case, he may bring either action and join therein counts in trespass and on the case, or either of them, and that the defendant shall plead to each count according to the practice at common law. This statute was intended to eliminate some ancient technicalities of procedure in these two tort actions. As a remedial statute it has been given a liberal construction. Thus in Barker v. Almy,
In the case at bar the plea of the general issue to the declaration in trespass was a denial of the fact that defendant had done the act complained of. Any matter of justification or excuse should have been specially pleaded. Collier v. Jenks,
The exception of plaintiff is sustained. The case is remitted to the Superior Court for a new trial.