128 A. 571 | R.I. | 1925
These are actions of trespass on the case for negligence in which a jury, trying the cases together, found for plaintiff Katharyn in the sum of $850 to compensate her for personal injuries and for plaintiff Arthur, husband of Katharyn, in the sum of $71 for disbursements. The cases are here upon defendant's exceptions to the action of the trial court in refusing (1) to grant his motion for direction of a verdict and (2) to grant his motion for a new trial.
The declaration bases defendant's liability upon the sudden starting of a trolley car operated by defendant company upon which Katharyn was a passenger. As a result of such starting she claims to have been thrown violently upon the floor of the car. *384
The testimony showed that she was a woman thirty-five years of age, in normal physical condition, that she boarded by the rear entrance a Broad street car in the center of the business district of Providence on June 6, 1923, at about 10:30 a.m. The car was of the closed type requiring two steps by the passenger to ascend from the ground to a vestibule; from this vestibule it was necessary to step up six to eight inches to reach the floor of the car upon which the seats were placed. The entrance to the body of the car was wide, without stanchions or other appliances to be taken hold of by passengers stepping from the vestibule to the body of the car. The car was not filled, the conductor stood in the rear vestibule and there was no obstruction to prevent plaintiff from passing directly from the vestibule to a seat in the body of the car. Her testimony shows that she had fully and firmly reached the vestibule floor and was on her way into the body of the car, that she had stepped upon the car floor with her right foot and had her left foot raised from the vestibule floor to follow when the car started "suddenly" and "with such a jerk" that it "threw" her so that it was "impossible to catch" herself; that she fell upon her hands and knees, and finally upon the car floor, at the edge of the rise from the vestibule floor to the floor of the body of the car. There was no evidence that her position balanced upon her right foot when the car started was noticed by the conductor, nor was there any evidence relative to a starting signal given by him. Other than as above there was no testimony from which could be deduced any unusual or extraordinary jolt or jerking in the starting of the car. Several witnesses for the defence testified that they felt none.
At the close of the evidence defendant moved for a directed verdict on the ground that there was no evidence of negligence in the starting of the car. The trial court held correctly that it was not the duty of the company to hold the car still until the passenger was seated but that the company's duty was not to start its car until a boarding passenger had reached a position of safety. Adams v. *385 U.E. Ry. Co.,
The liability of defendant therefore was determined by the jury by answering a question already settled in defendant's favor as a matter of law. The real question of fact regarding liability was whether there was anything unusual or extraordinary in the manner of starting the car. The evidence on this question is not altogether satisfactory. It is susceptible of interpretation in favor of defendant. But it is conceivable that plaintiff's evidence might be construed as her attempt to convey the impression of a more violent or jerky start than ordinarily occurs. If that is what she means to claim there is a question for the jury and if a jury should accept her story as against that of defendant's witnesses she might be entitled to recover. Because the parties have never had a trial of the only issue of fact upon which liability could be predicated, the approval of *387 the verdict by the trial justice can not aid plaintiff. We think, however, it would be improper to direct a verdict at this time and that the cases should be retried in the light of the law as here stated.
In each case the defendant's exception to the denial of its motion for a new trial is sustained and its exception to the denial of its motion for direction of a verdict is overruled. Each case is remitted to the Superior Court for a new trial.