Opinion
June 16, 1911.
PRESENT: Dubois, C.J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ.
(1) Common Carriers. Negligence. Collision. Contributory Negligence. In an action arising out of a collision between the wagon of plaintiff and a car of defendant, it appeared in evidence that the wagon was outside the track in the travelled way and suddenly turned in, and when the car stopped the wagon was in front of it and the horse had almost crossed the track: — Held, that plaintiff was guilty of contributory negligence.
TRESPASS ON THE CASE for negligence. Heard on exceptions of plaintiff and overruled.
A.V. Pettine, for plaintiff.
Joseph C. Sweeney, Alonzo R. Williams, for defendant.
After verdict for the defendant by direction of the court in this action of trespass on the case for negligence, the case is before this court on plaintiff's exception to the direction of said verdict.
The plaintiff's claim is that his wagon was run into from the rear by a car of the defendant. The language of the trial justice in directing the jury to find a verdict correctly summarizes the testimony, and is as follows:
"The fact is that here is a car coming along on the track; all the witnesses say this carriage was at a sufficient distance — some of them say three or four feet outside of the track, and all of the witnesses say it was outside of the track in the travelled way, and all say it suddenly turned in. All these witnesses who testified at all — excepting Testa — say it turned in, and when it was attempted to stop the car, this happened, and when the car stopped the wagon was in front of the car and the horse had almost gotten over the track on the left hand side. All the witnesses who testified at all in the matter and the majority of them who saw the wagon, saw its position as it is claimed, going on its way in the travelled way." . . . "It is clear it seems to me that this accident was brought about by the act of the driver turning in front of the car in a very short distance; that is, it was the contributory negligence of the driver of the team which brought about this accident."
Plaintiff's exception overruled, and case remitted to the Superior Court with direction to enter judgment on the verdict.