West Jersey Trust Co. v. Halliwell (N. J.) 276 West Jersey & S. R. Co., Cullen v. (N. J.) 283 | Zartman, In re (Pa.). 717 THE ATLANTIC REPORTER VOLUME 90 CURLEY v. BALDWIN et al. (Supreme Court of Rhode Island. April 1, 1914.) MUNICIPAL CORPORATIONS (§ 706*). USE OF STREETS-ACTIONS FOR INJURIES EVIDENCE NEGLIGENCE AND CONTRIBUTORY NEGLI GENCE. In an action for injuries received by a boy 81⁄2 years old, who was struck by defendant's automobile while he was crossing the street, evidence held to show no negligence by the defendant and to show that the plaintiff was negli gent. plaintiff at the time was 81⁄2 years of age. The point on North Main street where the accident is alleged to have occurred is approximately 60 feet to the north of the northerly line of Abbott street, and from this point for a long distance, in both directions, North Main street is a straight thoroughfare. In this portion of North Main street there are double tracks for electric cars, centrally located, going to and from Pawtucket, and known as the east and west tracks; the east track being used by the cars going in the direction of Pawtucket, and the west track by the cars going in the direction of Providence. The witnesses who observed the accident, other than the plaintiff, locate the occurrence on the easterly side of that portion of the highway which is used by Action by Clarence Curley, by his next vehicles. Opposite the point of the accident friend, against L. F. N. Baldwin and others. and upon the west side of the highway, ocTo the ruling of the Superior Court directing cupying the space between the curbstone and a verdict for the defendants, the plaintiff the west track, was a pile of dirt which had excepts. Exception overruled, and case re- come from an excavation made by the Provimitted, with directions to enter judgment up-dence Gas Company in the carrying on of on the verdict. [Ed. Note. For other cases, see Municipal | Corporations, Cent. Dig. § 1518; Dec. Dig. 8 706.*] Exceptions from Superior Court, Providence and Bristol Counties; George T. Brown, Judge. Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff. Barney & Lee, of Providence (Walter H. Barney and Francis I. McCanna, both of Providence, of counsel), for defendants. its work of relaying gas mains. Upon the east side of the highway, also opposite the point of the accident, were two wagons, an ice wagon and an express wagon, standing beside the curbstone. The defendant was driving an automobile in which were seated three friends and was proceeding at the rate of about seven miles an hour along North Main street, following a street car on the north-bound or easterly track going in the direction of Pawtucket. The defendant noticed the pile of dirt, from the excavation, on the west side of the street and the presence of the ice cart and express wagon standing on the easterly side. He also observed another car approaching on the south-bound or west track and was obliged to follow the northbound car, as he could not do otherwise under the prevailing conditions. There was а space of some three or four feet between the ice cart and the express wagon as they stood near the easterly curbstone, and the defendant says, and he is corroborated by other witnesses, that, when the front of his automobile reached a point in the highway practiThe accident occurred between 11 and 12 cally opposite the intervening space between o'clock in the forenoon at a point on North the two wagons, the plaintiff, apparently comMain street north of Abbott street. The ing from the sidewalk, ran out between the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes PER CURIAM. This is an action on the case for negligence to recover damages for personal injuries sustained by the plaintiff, Clarence Curley, on December 26, 1905. Suit was commenced by the plaintiff, through his next friend, on December 21, 1907, against L. F. N. Baldwin, B. F. Blackinton, and George E. Pierce, jointly. At the trial on June 16, 1911, the case was discontinued as to Blackinton and Pierce. The trial resulted in a disagreement. The case was tried a second time, in October, 1912, and a verdict for the defendant was directed by the trial judge. The case is now before us upon the exception of the plaintiff to the ruling of the trial court directing a verdict for the defendant. for that of the jury, upon whom the determination of its weight was properly placed; the evidence being sufficient to authorize the submission of the case to the jury. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] Vincent, J., dissenting. Exceptions from Superior Court, Provi dence and Bristol Counties; Charles F. Stearns, Judge. Action by George S. Bell, Jr., against the Providence Gas Company. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions overruled, and case remitted for entry of judgment. A. B. Crafts and James A. Williams, both wagons into the street and against the righthand front mud guard of the automobile. The plaintiff claims that, at the time of the accident, he came from the west side of the street; that he looked in both directions before stepping into the street and also after he was upon the street; that at neither time did he see anything in the street except an electric car in the vicinity of Abbott street; that he then continued across the road and got to the first rail of the east or northbound track; and that the next thing that he remembers he was in the hospital. He did not see the automobile at any time. In the first place, the testimony does not show any negligence on the part of the defendant. He was driving his car at a very moderate speed and at a reasonable distance behind the electric car which he was following. Further, the testimony does not show any negligent handling or management of the automobile by the defendant which occasioned the accident. If the story of the defendant and his witnesses, as to the manner in which the accident occurred and the direction in which the plaintiff was proceeding at the time, is correct, the plaintiff was clearly guilty of contributory negligence. If the plaintiff was proceeding from the west side of North Main street to the east, as he claims he was, and before attempting to cross looked up and down the street, as he says he did, the automobile would have been in plain sight and he would have seen it. The most favorable view that can be taken from the plaintiff's testimony is that, with the lapse of time, he may have forgotten just what he was doing at the precise moment of the accident and may have confused the conditions when he attempted to cross and was struck with those attending an earlier passage over the high-court, there was ample evidence which, if way from the west side. In viewing the case through the testimony of the plaintiff or through the testimony of the defendant, it seems to us that the plaintiff was negligent and that the verdict for the defendant was properly directed. The case is remitted to the superior court. with direction to enter judgment upon the verdict. BELL v. PROVIDENCE GAS CO. (Supreme Court of Rhode Island. April 1, 1914.) PER CURIAM. This court as a whole has spent a vast amount of time in the careful examination and consideration of the voluminous briefs and arguments of counsel, and of the great mass of testimony so ably analyzed and criticised therein, and has minutely examined all of the defendant's exceptions with a view to the determination of all the questions raised on behalf of the defendant. [1, 2] The principal exception of the defendant was to the refusal of the trial judge to grant defendant's motion for a new trial, claiming that the plaintiff failed to show by a preponderance of the evidence that the defendant was in any way responsible for the damage done to plaintiff's oysters. The evidence was in sharp conflict upon all points; but, in the opinion of the majority of the believed by the jury, tended to show that deleterious by-products of the defendant's gasworks had been, from time to time, allowed to escape into the waters of the Providence river in sufficient quantities to cause the de struction of oysters to a very large amount; that these conditions had prevailed from a time prior to 1904-05, when certain general investigations were made on behalf of the state authorities (board of shell-fish commissioners) down to and including the time of the alleged damage to the plaintiff (1907); that, while it does not clearly appear that any large amounts of water-gas tar or other by-products were turned into the river after the year 1905, there is evidence to Evidence, in an action for injuries to plain-show that there was and continued to be in tiff's oyster beds by the pollution of a stream with by-products from defendant's gasworks, held sufficient to warrant the submission of the case to the jury. 1. FISH (§ 7*) — OYSTER BEDS ACTIONS. - POLLUTION the river in the year 1905, and for several years thereafter, a large area or bank of mud in front of and near the gasworks, [Ed. Note. For other cases, see Fish, Cent. several feet in depth and many square feet in Dig. §§ 9, 10, 15; Dec. Dig. § 7.*] 2. APPEAL AND ERROR (§ 1002*) - REVIEW VERDICTS-CONFLICTING EVIDENCE. area, which did contain in large quantities such by-products, and which by the action of The Supreme Court, in reviewing a verdict tides and currents would be likely to gradualupon conflicting evidence, will not substitutely and continuously work further and further its judgment as to the weight of the evidence down the river and bay, and to cause the pol lution of the waters claimed to have existed | sufficient certainty that the damage to his on the plaintiff's oyster beds, and the damage oysters was due to the presence of such alto the plaintiff's oysters. The able and in- leged deleterious substances which he claims genious argument of defendant's counsel were discharged by the gas company into the serves to emphasize the conflict of testimony, river. but fails to convince the majority of the court that the trial judge erred in his refusal to grant a new trial. It is apparent from an examination of the record that the case was considered with great care by the justice who presided at the trial and heard the motion for a new trial; his rescript shows a painstaking consideration of the testimony and a careful analysis thereof, both upon the question of liability, and also upon the question of the proper amount of damages. In the opinion of the majority of this court there was ample evidence upon which the case was properly submitted to the jury; and, since their findings have been approved by the trial judge (except as to the amount of damages), we are unable to discover any ground upon which this court can properly interfere; we feel that to do so would be to encroach upon the province of the jury and to substitute our judgment as to the weight of conflicting testimony for that of the jury, upon whom the duty of determination was properly placed. As to the amount of damages, as reduced by the trial judge, and accepted by the plaintiff's remittitur, we find no reason to differ from that determination. We have also considered in detail the several specific exceptions urged on behalf of the defendant, all of which relate to the admission or exclusion of certain testimony; we do not find that the trial judge erred in the matters referred to in said exceptions, and no useful purpose would be served by a detailed statement of them here. The defendant's exceptions are all overruled, and the case is remitted to the superior court for the entry of judgment for the amount of the verdict for the plaintiff as reduced by the remittitur filed on his behalf. VINCENT, J. (dissenting). I am unable to agree with the conclusions reached by my Associates in this case. I shall not enter upon a lengthy discussion of the testimony and authorities cited, but shall simply confine myself to indicating, as briefly as possible, my reasons for dissenting. There is testimony, in behalf of the plaintiff, by some of the oystermen, that in raking for oysters certain slicks or oily substances would come to the surface of the water, from which arose a perceptible odor of gas, indicating, as it is claimed, the presence of water-gas tar. Experts, in behalf of the plaintiff, testify to various experiments made by them for the purpose of ascertaining the effect of water-gas tar and some of the constituent parts thereof upon oysters. These experiments, generally relating to conditions in 1904, were made in most instances with some separate constituent part of water-gas tar, as, for instance, napthaline, although they testify to the subjection of oysters to water-gas tar as a whole in one or more instances. These experiments were made by depositing oysters in a small vessel containing sea water to which was added a certain quantity of water-gas tar or some constituent thereof. In this bath, so composed, the oysters were allowed to remain in soak for a time without any circulation or agitation of the fluid composition, and the results were described as bringing about the death of the oysters. Whether or not similar results would have been obtained in a larger body of water agitated by tides and currents does not, to me, satisfactorily appear. This suit is brought for damages suffered by the plaintiff in the year 1907. It appears from the testimony that in the year 1904, when it is claimed that deleterious substances were discharged into the river by the gas company in much larger quantities than later, the death rate among the oysters in the bay and its tributaries was larger than at any other time, and that this death rate was observed in various localities where the presence of any deleterious matter discharged by the Providence Gas Company, or any other gas company, is not claimed. In that year oysters died in large quantities in Bristol Harbor, Kickamuit river, Warren river, and Seekonk river. It is not pretented that in these localities there was any deleterious matter of the kind or character which it is claimed was discharged into the river by the defendant company. It also appears from the testimony that later, in 1906, oysters were brought from Salt pond and planted in three different places in the bay, including Nayatt Point and Hog Island. Two of those places were entirely outside of the territory alleged to have been polluted by the defendant company. The third planting of the Salt pond oysters was upon the plaintiff's bed. All of these Salt pond oysters, wherever The plaintiff alleges in his declaration that the defendant, the Providence Gas Company, has, in the carrying on of its business as a manufacturer of gas, and particularly in the management of its works at what is called its "South Station," discharged into the waters of the Providence river certain deleterious and refuse products which, through the operation of the tides and currents, have been carried to the oyster bed of the plaintiff, thereby causing the death of his oysters. In order for the plaintiff to main-planted, died. |