157 A. 574 | R.I. | 1931
This is an action of trespass on the case for negligence. The jury returned a verdict for the defendant, and the case is here on plaintiff's exception to the refusal of the trial justice to instruct the jury as requested.
The plaintiff was foreman for a contractor engaged in making alterations on and building an addition to a dwelling house. The defendant was a subcontractor engaged in removing the slate from a small section of the roof which was twenty-eight feet from the ground. While the defendant's employees were so engaged, one of the pieces of slate broke and a portion of it slipped from the roof and struck the right wrist of the plaintiff who was standing on the ground. The plaintiff is seeking damages for the injury caused to his wrist. Just before the accident the plaintiff had walked from a position of safety to a point near the house and was at the time instructing one of his co-workers relative to the carpentry work. The jury were probably of *81 the opinion that the plaintiff was guilty of contributory negligence in standing at a place which he knew was dangerous.
The plaintiff's exception is to the refusal of the trial justice to instruct the jury relative to the doctrine of the last clear chance.
The plaintiff knew that the slate was being removed and that pieces, or whole slates, might fall and injure anyone standing below. He heard his employer shout to the men on the roof to be careful and one of them replied: "O.K., but you fellows be careful down below." Plaintiff requested one of the defendants to tell his men to "watch out for any slate coming off the roof" and was advised to "keep away from that corner until they get the slate off."
The doctrine of the last clear chance was not applicable to the case. In Riley v. Consolidated Ry. Co.,
In Sherman and Redfield, Negligence, Vol. I, Sec. 101, the authors, speaking of the limits of the doctrine, said: "The foregoing rule obviously does not apply where the plaintiff's contributory negligence is, in order of causation, either subsequent to or concurrent with that of defendant."
In Vizacchero v. R.I. Co.,
In Coburn v. United Electric Rys. Co., 128 A. 435, this court in denying recovery under the doctrine of the last clear chance said: "This doctrine does not apply where it appears that the failure of the deceased to avoid injury resulted solely from his want of due care in failing to observe his own danger and where his opportunity for avoiding the injury was as late or later than that of the defendant."
In 20 R.C.L. 140, it is stated that "the doctrine has been applied chiefly to cases of injury to persons on railroad tracks, and to collisions between railroad cars and vehicles on the highway. It is not, however, limited to any particular class of cases. . . . It has been said, however, that the doctrine is applicable only in exceptional cases, and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases, in connection with, and often as a part of, instructions upon the subject of contributory negligence, is misleading and dangerous."
Thompson, in his Commentaries on the Law of Negligence, Vol. I, Sec. 232, states that the doctrine is limited to cases where the defendant was under the duty of exercising care to discover the dangerous situation of others.
The facts in Coleman v. Smith Co.,
The plaintiff's exception is overruled and the case is remitted to the Superior Court for the entry of judgment on the verdict.