(108 A.) (42 R. I. 386) 1919.) Oct. 29, MUNICIPAL CORPORATIONS 621- HEARING ON ISSUANCE OF PERMIT FOR GARAGE. be located; if the owners of the greater part of the land within 200 feet of such lot shall file the required plat, and their objections in writing to the granting of the application said application shall be denied. held by the inspector of buildings, August 18, 1919. At the hearing on that day the petitioners, Maynard et al., filed their written objections to the granting of the application and a plat as required by the city ordinance. The remonstrants and Doll were represented by attorneys by whom arguments were made in behalf of their clients. The record con From the record produced by the respondent in response to the writ, it appears that a public hearing on the application of Doll Where hearing by the inspector of build- for a permit to build the garage, after legal ings on application for permit to build a pub-notice had been given by advertisement, was lic garage after legal notice by advertisement was duly held, and landowners, pursuant to ordinance of the city (Ordinances of the City of Pawtucket, c. 166), filed written objections to granting of the application, all parties being represented by attorneys, who were given a week on conclusion of the hearing to file briefs on the question of including street areas, the decision being reserved, all of which was shown by the record, remonstrance filed within the week by a new party, owning land within the radius from the garage limited by the ordinance, was not filed within time prescribed by the ordinance, the hearing having concluded, to render issuance of the permit to build illegal as against objection of the owners of the greater part of the land within 200 feet. Petition for writ of certiorari by Adelard Maynard and others against Henry Vigeant, Inspector of Buildings. Writ dismissed. John F. Collins, of Providence, for petitioners. cludes as follows: "The hearing closed. Attorneys given one week to file briefs on the question of including street areas. Decision reserved." At the hearing before this court evidence was presented by both parties, and it was agreed that the remonstrants on August 18th were not the owners of the greater part of the land within 200 feet of the proposed location. It is also agreed that in computing the area of the land within a radius of 200 feet of the location of the garage the area James G. Connolly, City Sol., of Pawtucket, of public highways is to be excluded. R. for respondent. STEARNS, J. The proceeding in this cause is by writ of certiorari. The respondent, Vigeant, the inspector of buildings in the city of Pawtucket, on the 8th day of September, 1919, granted a permit to one Herman Doll to construct a public garage on Trenton street in said city. The petitioners, Maynard et al., who are owners of land adjacent to the land on which the proposed garage is to be erected, claim that the issuance of said permit was illegal. By an ordinance of said city (chapter 166, an ordinance relating to automobile garages, approved July 25, 1919) it is provided that every person desiring to erect, alter, or enlarge any automobile garage shall file an application therefor in the office of the inspector of buildings, and shall not commence any work thereon without a permit from the inspector of buildings; said inspector is required to give notice by advertisement of the time and place of the hearing on the application; at the hearing owners of land within a radius of 200 feet of the lot upon which said garage is or is to be located may file their objections in writing to the granting of the application, together with a plat showing the location of the building or proposed building and the lot numbers and names of the owners of the land within 200 feet of the lot upon which the garage is to I. Society, etc., v. Town Council of Cranston, 21 R. I. 577, 44 Atl. 223. Within the week allowed, briefs were filed by counsel with the inspector of buildings, and a new remonstrance was also filed by the Everlastik, Incorporated, a corporation which owned land within the 200-foot radius. If this remonstrance was made in proper time, or, to state the question in the terms of the ordinance, if it can properly be considered as made "at the hearing" held by the inspector of buildings, then the issuance of the permit to build was illegal, as the remonstrants by the inclusion of this corporation are the owners of the greater part of the land within the radius of 200 feet, and in that case the inspector of buildings has no discretion, but must deny the application. We are of the opinion that the remonstrance of this corporation was not filed within the time prescribed by the ordinance, as the hearing at that time had been concluded, the parties had presented their evidence, and the question then was a question of law, in regard to the proper interpretation of the ordinance. It is argued that the action of the inspector at the conclusion of the hearing on August 18th was in effect and in fact a continuance or an adjournment of the hearing for one week, and that during that period, or until the time when the decision was given by the inspector, September 8, 1919, the hearing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ITY OF BAILEE FOR NEGLIGENCE OF SERVANT OR AGENT. contemplated by the ordinance could not being that the injury was not occasioned by his said to be closed. The ordinance in ques- negligence or that of his servant or agent. tion should be construed with reasonable 6. PRINCIPAL AND AGENT 159(1)-LIABILliberality, having in mind the fact that the tribunal created thereby is not a court of law, and that the parties interested in the applications for permits to build or opposed thereto in many cases appear without counsel. But the time within which remonstrants must act is limited by the ordinance to the time of the hearing. This includes, not only the first hearing as advertised, but any continuance or adjournment thereof, so long as the hearing is not closed. Having heard all of the testimony presented by the parties, it is proper to declare, as was done in this case, that the hearing is closed, and thus conclude the period within which remonstrances can be lawfully made. As the petitioners in this cause were not at the time of the hearing the owners of the greater part of the land within 200 feet of the proposed location of the garage, the question of the granting of the permit was one to be decided by the inspector of buildings in the exercise of his discretion, and his decision is not subject to review by this proceeding by writ of certiorari. The writ of certiorari is dismissed. (7 Boyce, 383) MORGAN MILLWORK CO. v. DOVER GARAGE CO. (Superior Court of Delaware. 1919.) Kent. Kent. Oct. 27, The negligence of a servant or agent of a bailee of property for hire is imputable to the' bailee. 7. LIVERY STABLE AND GARAGE KEEPERS mm 6. -CARE OF PROPRIETOR IN DELIVERING AUTOMOBILE TO RIGHT PERSON. A garage keeper is bound to exercise reasonable care to preserve from injury automobiles left by the owners at his garage for hire, such as a reasonable person would exercise in respect that the person to whom he delivers an automoto his own property, and he is bound to see bile left with him for safe-keeping is the proper person to receive it. 8. LIVERY STABLE AND GARAGE KEEPERS ~~6 -DELIVERY OF AUTOMOBILE ON ORDER OF OWNER. The only surrender that a garage keeper can make of an automobile left with him for safe-keeping is on the order of the owner, express or reasonably implied. 9. DAMAGES 113-MEASURE FOR INJURY TO AUTOMOBILE FROM NEGLIGENCE OF BAILEE. Where the servant of a garage keeper negligently delivered to a person not entitled to possession an automobile left at the garage for safe-keeping, and the machine was taken from the garage and injured, the owner's measure of damages is the difference between the value of the automobile immediately before and its value immediately after the accident. Action on the case by the Morgan Millwork Company against the Dover Garage Company to recover damages for injuries to an automobile, which plaintiff's agent had 1. BAILMENT 14(1)-LIABILITY OF BAILEE stored in the garage of the defendant company for safe-keeping. Verdict for plaintiff. PENNEWILL, C. J., and BOYCE, J., sit FOR SAFE-KEEPING. When a contract of bailment arises by delivery of property to another to safely keep for hire, the bailee becomes liable for the safe-keeping of the property. 2. NEGLIGENCE 1-WHAT CONSTITUTES. "Negligence" is the failure to use such care as a reasonably prudent and careful person would exercise under similar circumstances. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Negligence.] 3. NEGLIGENCE 121(1) - NEVER PRESUMED. Negligence is never to be presumed, but must be proven. 4. NEGLIGENCE 121(1)-BURDEN OF PROOF ON HIM WHO ALLEGES. Ordinarily the burden of proof is upon him who alleges negligence relied on for recovery. 5. BAILMENT 31(1)-ON INJURY TO BAILED CHATTEL, BURDEN OF PROOF TO SHOW WANT OF NEGLIGENCE ON BAILEE. Where property is damaged or injured while in the exclusive custody of a bailee, or his agent or servant, the bailee has the burden of show ting. James H. Hughes, of Dover, for plaintiff. The plaintiff introduced evidence to show that on the evening of September 23, 1915, at about 11 o'clock, W., its traveling salesman, drove its automobile, furnished W. for use in its business, into the garage of the defendant company for safe-keeping over night, as he had done several times before, for which he paid 50 cents per night; that W. backed the car into a space indicated by an employé of the defendant company, and that he thereupon left the garage and went to his room at a hotel and retired for the night; that early the next morning he was awakened by men who informed him that the automobile was in the outskirts of Dover in a wrecked condition. Testimony for the defendant was to the effect that W. left the automobile in the garage of the defendant company but did not (108 A.) signify for what period; that shortly there- [ after four men came into the garage, one of whom claimed to be the owner of the car, describing it, and asked for it; that the employé in charge of the garage, after asking him certain questions to establish his familiarity with the car, and after requiring him to stand in a light so that he would know him again, permitted him to take the car out. Evidence was introduced by both sides as to the value of the car at the time it was left in the garage, and also as to the extent of the damages resulting from the injuries to the car. Plaintiff's Prayers. (8) An individual or corporation is liable for negligence of a servant. Pusey v. Webb, 2 Pennewill, 490, 47 Atl. 701; Wilson v. Rockland Manufacturing Co., 2 Har. 67; Garrett v. People's Railway Co., 6 Pennewill, 31, 64 Atl. 254. See 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 322, Ann. Cas. 1913E, 823. (9) While the general rule is that negligence is never to be presumed, but must be proved like any other substantive fact, when the burden of proof is upon the plaintiff, where the property is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by negligence of himself or his servants or agents. Pusey v. Webb, 2 Pennewill, 490, 494, 47 Atl. 701; Bowen v. (1) If a person receives property as bailee, and such property is damaged or injured while in his possession and by the neg-Isenberg, 6 Pennewill, 230, 231, 67 Atl. 152; ligent conduct or carelessness of the bailee, his servant or agent, he is liable for such damage or injury. Pusey v. Webb, 2 Pennewill, 490, 47 Atl. 701; Bowen v. Isenberg, 6 Pennewill, 230, 67 Atl. 152. (2) Negligence is the failure to use such care as a reasonably prudent and careful person would exercise under similar circumstances. Garrett v. People's Railway Co., 6 Pennewill, 31, 64 Atl. 254; Keith Co. v. Booth Fisheries Co., 4 Boyce, 231, 87 Atl. 715. (3) A garage keeper is bound to exercise reasonable or ordinary care to protect from injury automobiles left by their owners at his garage for hire. McLain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. (N. S.) 561, Ann. Cas. 1915D, 956; Firemen's Fund Insurance Co. v. Schreiber, 150 Wis. 42, 135 N. W. 507, 45 L. R. A. (N. S.) 314, Ann. Cas. 1913E, 823. (4) It is not ordinary or reasonable care for one charged with the safe-keeping of an automobile in a garage to allow it to go out on the road in the hands of a third party without the owner's consent. McLain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. 564, Ann. Cas. 1915D, 956. (5) Every bailee is bound at his peril to know that the person to whom he delivers the chattel is the proper person to receive it, and if he delivers it to the wrong person, though acting in perfect good faith, he is, nevertheless, liable for its conversion. Amer. & Eng. Ency. of Law (2d Ed.) 754. 3 (6) The only surrender of an automobile that a garage keeper can rightfully make is on the order of the owner, expressed or reasonably implied. (7) In case of bailment for hire without an express undertaking to keep safely the bailee is still liable for neglect. Vaughan v. Webster, 5 Har. 256; McLain v. West Virginia Automobile Co., 72 W. Va. 738, 79 S. E. 731, 48 L. R. A. 561, 564, Ann. Cas. 1915D, 956. Stone v. Case, 34 Okl. 5, 124 Pac. 960, 43 L. R. A. (N. S.) 1169. (10) The general rule of law is that where property is delivered to a bailee and the latter fails to return it on demand, or if property was delivered to the bailee in good condition and was returned damaged in such a way as does not usually occur by the exercise of proper care, a prima facie case is made out against the bailee and negligence will be presumed. 34 Okl. 5, 124 Pac. 960, 43 L. R. A. (N. S.) 1169; Russell v. Fagan, 7 Houst. 389, 396, 8 Atl. 258; 6 C. J. 1158 (§ 160). (11) The measure of damages in such cases, according to the laws of this state, is the difference between the value of the automobile in its damaged state and its value before it was damaged, with interest from the date of such damage, and also such reasonable sum as the plaintiff may have expended incident to such accident, the rule being that the injured party ought to be put in the same condition, so far as money can do it, as though the accident had never happened or had been instantly repaired. Keith v. Booth Fisheries Co., 4 Boyce, 231, 232, 87 Atl. 715; Schelich v. Wilmington, 1 Boyce, 57, 60, 74 Atl. 367; Garrett v. People's Railway Co., 6 Pennewill, 29, 35, 64 Atl. 254; 8 Thompson on Negligence, 7242. Defendant's Prayers. (1) As to the law of bailment, as to what constitutes a bailment, and that there must have been a contract of bailment before the plaintiff can recover in this case. (2) That, under the law of bailment, the bailee is obliged to use only the ordinary care of a prudent man, and that if the jury should, from the evidence, be satisfied that the automobile was taken in any way by the permission of plaintiff's agent, the plaintiff cannot recover. (3) As to the measure of damages BOYCE, J. (charging the jury). This is an action brought by the plaintiff company against the defendant company to recover damages for injuries to an automobile of the plaintiff company, alleged to have resulted from the negligence of the defendant company with which the automobile in question had been left in its garage for safe-keeping. [1] This action is based upon an alleged contract of bailment, such as arises where one delivers property to another to keep safely for hire, either express or implied. When such a contract is created, and the property is delivered to the bailee, the latter is liable for the safe-keeping of the property. [2-6] Negligence is the failure to use such care as reasonably prudent and careful person would exercise under similar circumstances. Negligence is never to be presumed. It must be proved, like any other substantive fact. Ordinarily the burden of proof is upon him who alleges the negligence relied upon for a recovery. When, however, property is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by a negligence of himself, his servant or agent. The negligence, if any there was, of the servant or agent of the bailee is imputed to the bailee. [7, 8] A garage keeper is bound to exercise reasonable care to preserve from injury automobiles left by their owners at his garage for hire, such care as a reasonable person would exercise in respect to his own property, and he is also bound to see that the person to whom he delivers an automobile left with him for safe-keeping is the proper person to receive it. The only surrender that a garage keeper can rightfully make of an automobile left with him for safe-keeping is on the order of the owner, express or reasonably implied. [9] If, under the evidence in this case, you find for the plaintiff, your verdict should be for such a sum as would reasonably compensate it for the damages sustained, the measure of which is the difference between the value of the automobile immediately before, and its value immediately after it was damaged, with interest from the date of the damage. If, on the other hand, you find that the defendant exercised due and reasonable care in keeping the automobile, your verdict should be for the defendant. Verdict for plaintiff. (108 A.) cows off the track, into and upon the travelHILL v. RHODE ISLAND CO. (No. 5254.) ed part of the highway, but was unable to do So. There was evidence on the part of the (Supreme Court of Rhode Island. Nov. 14, plaintiff's hired man, who was in the barn 1919.) 1. RAILROADS 446(11)-LIABILITY FOR INJURIES TO ANIMALS ON TRACK A JURY QUES TION. In an action against a railroad company for damage to cows going on its track while driven along the adjoining highway, plaintiff's evidence on the issue of motorman's negligence in operating the car at a high speed as he was rounding a curve, which deprived him of the benefit of the headlight, held sufficient to take the case to the jury. at the time, that his attention was attracted to the car by the rays of its headlight, which shone into the barn as the car approached and rounded the curve, and that he ran out and saw the car approaching and rounding the curve, and that "the car was going just as fast as it could go"-that "it was going pretty fast; like lightning." There was further evidence that the headlight (a strong arc light), which was lighted on the car, shone at a tangent to the track in rounding the curve, thus leaving the track in darkness for a considerable distance ahead of the car; 2. APPEAL AND ERROR 1002-VERDICT ON that shortly after rounding the curve the CONFLICTING EVIDENCE SUSTAINED. car struck three cows in succession, knock Verdict on conflicting evidence will not be ing them off the track and seriously injuring disturbed by the appellate court. Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge. Action by George E. Hill against the Rhode Island Company. Nonsuit was directed as to the first count of the complaint, and there was a verdict for plaintiff on the second, and both parties except. Defendant's exception overruled, and case remitted to the superior court, with directions to grant a new trial as to the first count and enter judgment for plaintiff on the second. Edward M. Sullivan and John J. Sullivan, both of Providence, for plaintiff. Clifford Whipple and Earl A. Sweeney, both of Providence, for defendant. PER CURIAM. [1] As to the first count for damage done to cows: This, court, after reading and due consideration of all the evidence, is of the opinion that the trial judge erred in directing a nonsuit at the close of the plaintiff's testimony. It appeared that the plaintiff after sunset was driving a herd of 35 or more cows in the highway in a westerly direction towards his barn; that the railroad track was laid at the extreme left, or southerly, side of the highway, and that no car was in sight at the time when the cows left their pasture and were driven up the highway towards the west; that some of the cows were on the track, and some on other parts of the highway; that at or near the barn, towards which the cows were being driven, there was a curve in the track; that at some distance down the track near a bridge the plaintiff first heard the noise of a car appoaching, and then and thereafter endeavored with the aid of his dog to get the them; that it struck a fourth cow, and ran over and killed her, and when the car was finally stopped the cow killed was up against the wheels of the rear truck and was dead. From all these facts it would be possible for the jury to infer negligence of the motorman in approaching and rounding a curve at a high and negligent rate of speed, at a moment when he would be deprived of the benefit of his headlight, entering upon a portion of the track which would be so dark that he could not see any obstruction of the track in time to avoid accident and injury. We are of the opinion that all this was such evidence of negligence on the motorman's part as to require the defendant to enter upon its defense, and to explain and show all the facts which were peculiarly within its knowledge as to the speed of the car and the precautions, if any, which were taken. It was error to take the case from the jury, and to order a nonsuit as to the first count, and the plaintiff's exception on that point is sustained. [2] As to the second count for killing the hog: There was evidence both as to defendant's negligence and as to contributory negligence of the plaintiff's servants in allowing the hog to go upon the track in front of an approaching car. It was properly submitted to the jury in a charge to which no exception was taken. There was sufficient evidence to support the verdict of the jury in favor of the plaintiff, and we find no error in the refusal of the trial judge to grant the defendant's motion for a new trial. The defendant's exception, based upon this ground, is overruled. The case will be remitted to the superior court sitting in Providence county, with direction to grant a new trial on the first count and to enter judgment for the plaintiff upon the second count upon the verdict as rendered by the jury. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 108 A.-5 |