red light on the right and a white light on the left. At the time many automobiles were said to be passing in the roadway blowing their horns. The plaintiff wore a dark suit and a large black hat. away." It developed in cross-examination that she had in an interview with an agent of the defendant signed a sworn statement in which, among other things, she had said: "The car was about 15 yards away when I first saw her." "She seemed to be stooping over as car approached her, and she paid no attention to the warning.' "I feel sure car wouldn't have hit her if she hadn't moved back, but I couldn't say whether she took a step backwards or not, as it was quite dark where this took place." "She had stood about two feet from the right rail alongside of auto and there were one or two other people with her." She admitted making the last three quoted statements and said they were true, but did not remember making the first. * * a The defendant offered testimony by the crew of the car and by one or more of its passengers that the jitney was drawn up to the curb near but north of the southernmost of the two large trees, or approximately 75 feet to the north of the location of the bare spot as testified to by several of the plaintiff's witnesses. The electric car was a large open one, more than 40 feet long. The track there was on an incline, and the motorman said the car was running from 10 to 15 miles The young lady sitting at the left end of an hour with the power shut off, and that the front seat testified that from the "top of he was ringing his bell and looking ahead, the hill" she "saw the lady and and that just before the plaintiff was struck fellow stooping down"; also, the red light he blew his whistle and threw on the pow-on an automobile. There was no one in the er in reverse. Several passengers testify automobile. The woman did not move as the to his ringing of the bell and the blowing of car approached her. Learned afterwards that the whistle. The car had a headlight of the her name was Morrison. When halfway size ordinarily used in the city. The motor- down the hill, thought the woman was going man and other witnesses say that it was to be struck. Witness said she was not a quite dark along there. He says that, just good judge of distances, and did not know before he "got in front of the house where how far it was from top of hill to place of the hedge was, perhaps 15 or 20 feet," he accident. This witness some eight months "saw an automobile on the right-hand side after the accident had signed a statement. of the road, * and there were some Witness denied saying she "first saw the woman at right of track when car was over one length away," as was recorded in the statement. people down in there by the tree." "There an hour. On the front seat of the car, immediately behind the motorman, sat three young ladies who testified in the case; two called by the plaintiff, the third by the defendant. The one sitting at the right end of the seat testified that when the car was at the top of the hill she saw a woman ahead, standing by a machine on which was a red light; the woman wore a dark suit and a big black hat. In answer to a question as to whether the woman moved after she saw her, she replied, "Not that I know of." After saying that the distance from the top of the hill to the woman was "considerable," that she could not estimate it in feet, on being pressed judged The third one of the young ladies who sat on the front seat was called by the defendant. She said the accident happened "right near the house with the hedge around it." She saw an automobile right at the curb stone and a stooping figure. When she first saw the stooping figure, the car was about opposite a slate-colored house, which she thinks is next south of the house with the hedge. She saw the figure move, and it seemed to move back towards the track. She was shown a signed statement which contained this sentence, "This lady was about 50 feet away when I first saw her." The witness said positively that she did not say that; that the defendant's agent asked her if it was 50 feet, to which she had replied, "I couldn't say how much 50 feet was." The agent of the defendant who obtained these statements testified in effect that he did not remember any thing these witnesses had told him, but that he had written only what they related to him. From the top of the hill to the middle of the bare spot is shown to be upwards of 400 feet, the exact location of the top not being stated with exactness in the testimony. If the slate-colored house be the one next south of the house with the hedge, then the distance from the entrance to the south apartment thereof to the middle of the bare spot is given as 131 feet. Some of the witnesses say that the electric car made a quick stop. The mo length, or 28 feet. The conductor says that when it stopped the rear of the car was a little to the south of the first large tree. Several witnesses say that after the car stop ped the plaintiff was to the rear of the car a car length or 11⁄2 car lengths. served at all the method of transportation knows perfectly well, as the evidence shows here, that where there is an occasion to tear up a street or repair tracks, or anything of that sort, sometimes only one track is used or the cars are run in a different way from what they are ordinarily run. Now, it is a fair question of fact for the jury, having in mind the fact [1] There was therefore conflicting testi- that the custom was to use that outbound track mony as to the precise place of the accident, on the right-hand side of the street for cars as to the speed of the car, as to whether the outbound, having in mind the fact that properplaintiff moved towards the track just before ly cars could use that track going in the other direction if they saw fit or if necessity required, the accident, and as to the distance from whether or not she should have taken a look in which she could be seen by those on the car the other direction and if she failed to do that, as it approached her. We think there was as a consequence of her failure to look up to ward the track, she received this injury, whethtestimony from which, if believed, the jury er that would be contributory negligence. If could properly conclude that the plaintiff did you say, however, that ordinary care did not not move from the position she had taken, require her to do that in the particular situathat she was seen by those on the front seat tion which existed there, if you say that that would amount to extraordinary care and not of the electric car at such a distance as to ordinary care, then she is not bound to take permit the motorman to see that she was extraordinary care. If ordinary care is conin a place of danger and apparently unaware sistent with simply looking down at the place of it, and that he was negligent in not stop-ing out for that, then she would have complied where the car ordinarily would run and watchping the car in order to avoid hitting her, with the standard I have indicated to you as in accordance with the doctrine of the last requisite." clear chance as stated in Underwood v. Old Colony Street Ry. Co., 33 R. I. 319, 325, 80 Atl. 390. Accordingly, it was not error to submit the case to the jury. The exception to the denial of the motion to direct a verdict is therefore overruled. [2] The eleventh request of the defendant, on the denial of which the ninth exception is based, may be considered out of its order in this connection. It is as follows: "(11) That if, as soon as the motorman saw the plaintiff in a position of danger, he used every appliance at his command to stop the car, he was not guilty of negligence in failing to stop the car before he struck the plaintiff.' The court below refused to so instruct, "because that leaves out the point that he should have seen her, if he could have seen her." We think there was no error in this ruling, and the ninth exception is overruled. [3] Exceptions 6, 7, 8, and 10 are considered together in defendant's brief, and, instead of discussing them separately, we will consider the one question to which they all relate which is made clear by the charge and the exception thereto. The portion of the charge excepted to is as follows: "Now, I cannot say to you, as a matter of law at this time, whether or not she was guilty of negligence in not looking toward the park. That is a question of fact for you to decide, whether, in view of all the conditions existing there, all of the dangers which a reasonably prudent person might apprehend, whether she should have taken a look occasionally in the other direction. It is a question of fact for you to say, in the particular situation which existed there that night whether she should have looked occasionally at least in the direction of the park. Now she says that she knew that the cars used the right-hand tracks, and, having that in mind she was looking in the direction from which she might expect danger to arise. It certainly has appeared in the testimony, and perhaps we all know, that the customary way for cars to run is on the right-hand track unless some exigency exists. It also appears that, although that is the customary practice all over the city where there are two tracks, it isn't Defendant excepted on the ground that the jury should have been instructed that plaintiff was negligent as a matter of law in not again looking to the south. As to the conflict of testimony relative to the question of whether the plaintiff suddenly moved towards the track or simply stood in the position originally taken by her, the court charged the jury in substance that if she stepped out suddenly, as one witness had stated, and in consequence was struck, the defendant would not be liable; so that the portion of the charge quoted clearly refers only to the question of her negligence as based on her own statement of where she stood, and particularly as to whether she was negligent in not from time to time looking along the track towards the south. Having seen no car approaching from the south as she alighted facing in that direction, and immediately taking a position which permitted her to see a car coming from the north, there must have been an appreciable period of time within which she was not negligent, even if the position occupied would be a place of danger when a car was passing. The question is whether or not she was negligent in continuing to remain in the place in which she stood without looking again in the direction of the park. She says that, according to her observation, where there were two tracks in a street cars always proceeded on the track which, in relation to the direction in which they were going, is on the right, and that she never knew them to go otherwise; that she had not been on Elmwood avenue for seven or eight months; and in substance that she was not aware of any existing condition or situation which affected or altered the mode of operating cars there. If her statements in this regard be accepted as true, yet if she heard a car approaching and thereupon, having observed that no car looking behind, upon the assumption that it was upon the easterly track. This was contributory negligence, unless he had a right to rely upon the practice as an invariable one." then omitted to look in the other direction there would certainly be some basis for a claim of negligence on her part. She says, however, that she did not see or hear the car. Two other persons standing by her side also As a matter of fact the practice was not an say that they did not see or hear it until it invariable one, as some north-bound cars ran was right upon them. The chief reason sug- regularly on the west track. Plaintiff's proof gested for this failure to hear the car and on this point rested upon the testimony of a any warning it gave by bell or whistle is the witness, who was with the deceased at the noise caused by numerous automobiles pass-time of the accident, that, so far as he had ing there and the blowing of their horns. The court is of the opinion that the situation thus presented made it proper to submit to the jury for its determination as a question of fact whether the plaintiff was in the exercise of the care required of her in the circumstances in failing to see or hear the approaching car in season to move from the place where she stood, if need be, and that therefore the trial court did not err in so submitting it. While some of the cases cited by the defendant are somewhat similar to the case at bar in showing a reliance upon the regular or customary movement of steam trains and street cars, in other respects they contain features making them distinguishable. observed, it was customary for north-bound cars to go on the east track. The court said: The plaintiff in Beerman v. Union R. Co., 24 R. I. 275, 52 Atl. 1090, lived near the scene of the accident and was thoroughly acquainted with the location and the running of the cars. Apparently there was a single track on Camp street, the place of the accident, on which cars were operated in both directions. The plaintiff came out of a cross street at right angles, looked to his right, and proceeded to cross the track with a car coming from the other direction so near that an accident was inevitable. Obviously the failure to look in both directions was in the circumstances a lack of ordinary care. As to what constitutes ordinary care, the court on page 280 of 24 R. I., on page 1091 of 52 Atl., says: "What is ordinary care under one set of circumstances might amount to negligence under a different set of circumstances. Ordinary care is such care as a person of ordinary prudence exercises under the circumstances of the danger to be apprehended." "But this was not proof of such uniformity it for granted that this car was upon the east of practice as to justify the decedent in taking track, and disregarding the duty of turning his head to see whether he was safe when he heard the bell." In that case the decedent heard the approaching car and suddenly without looking placed himself in its path. His failure to look after being warned of its approach is recognized as significant evidence of his negligence. It is distinguishable from the present case in that the plaintiff, if her testimo ny is believed, did not hear the car and was not aware of its approach. In passing it may be noted that in Baldwin v. Heraty the court held that there was no evidence warranting the inference that the accident could have been prevented after discovery of dece dent's negligence. The other cases cited by defendant do not seem sufficiently in point to require separate consideration. They are cases in which persons attempted to cross, without looking, steam railway tracks in front of approaching trains, which were close at hand and plainly in sight. The only suggested similarity is that in so doing they relied upon what they understood was the regular or customary movement of trains. We think, however, that the other circumstances of those cases readily distinguish them from the present case. Exceptions 6, 7, 8, and 10 are therefore overruled. The court later in its charge explained the doctrine of the last clear chance and instructed the jury in effect that if it were In Baldwin v. Heraty, 136 Mich. 15, 98 N. assumed that the plaintiff was negligent in W. 739, which the defendant says is in its tinued to be negligent until she was struck, failing to look towards the park, and confacts more nearly like those in the present and that the motorman saw she was standcase than any other case cited, the jury reing in dangerous proximity to the track, and turned a verdict for the defendant in the lower court from which the plaintiff appeal- apparently did not appreciate her danger or ed. In that case a person riding a bicycle hear his warning signal, and he then had the in a northerly direction in the middle of the opportunity to avoid striking her by using easterly of two street car tracks, on hearing the appliances under his control for stopping the car and failed to do so, the company a car approaching behind him, apparently assumed that the car was on the easterly track, would be liable notwithstanding her negliand without looking behind crossed over to gence. No exception was taken to this porthe westerly track on which the approaching statement of the law, even if the jury were tion of the charge. Therefore, under this car really was and was almost immediately of the opinion that she was negligent in not where she did, that would not be decisive of looking towards the park, and in standing the case in the event that they also found struck and killed. The court said that: "The evidence conclusively shows that the deceased, knowing that a car was coming, and hearing its warning, rode in front of it without that the motorman was guilty of negligence under the doctrine of the "last clear chance." In such case the final act of negligence of the motorman would be the proximate cause of the injury to the plaintiff. The question of whether he was thus negligent clearly appears to be the vital one in this case. A careful examination of the testimony satisfies us that it would be difficult to uphold the verdict except on the testimony to which the doctrine of the last clear chance is applicable. In all probability the car was going at a rate of speed greater than that permitted by ordinance. There is little, if any, evidence however to show that this was negligence in the existing circumstances. So far as the exception taken to the denial of the motion for a new trial relates to the question of liability, inasmuch as there was conflicting evidence justifying the submission of the case to the jury and the trial judge has approved of the verdict, we do not find that he was clearly in error and the exception in this respect is overruled. [4] It remains to consider this exception as based on the claim that the damages awarded are excessive. By the blow she received when struck by the car, the plaintiff received a comminuted fracture of the humerus of the left arm. She was immediately taken to the Rhode Island Hospital. After the lapse of about a week, to use the language of the surgeon in charge: "It was deemed necessary to make of this a compound fracture; that is, * • to cut in upon the fracture itself from the outside." This was done, and after a few days the cut or wound became infected, pus formed, followed by necrosis of the splintered bone, necessitating three operations at later periods for the removal of fragments of diseased bone, as well as grooved scar on the outside of the arm about seven inches in length. The freedom of movement of the arm, particularly at the elbow, was impaired to a considerable extent, and the medical testimony was practically unanimous in saying that there would be some permanent diminution in the movement and usefulness of the arm, although differing somewhat as to its extent. It was also said that she would probably on occasions suffer pain in it due to changes in the weather. At the trial she testified that she slept well, had a good appetite, and had regained her normal weight of about 155 pounds. She had walked to Market Square from Olneyville on seven or eight occasions since the accident, but it made her tired and she rode back. She had done no work since she was hurt. When injured she was 26 years old, was in good health, was then working and for about a year before had worked in the Paragon Worsted Mills as a burler, earning on an average of $10.50 a week. She had worked in mills previously, but her earnings in them were not given. By the life tables her expectancy of life was about 37 years. There was no evidence that she had incurred any expense for surgical or medical services. The court in its charge to the jury as to the matter of damages in pointing out the different things for which the plaintiff was entitled to compensation, in case the defendant was held to be liable, said: "So far as it appears, the principal injury to this plaintiff is in the left arm, also shoulder joint, and things connected therewith." In his rescript the trial judge says that, when the jury announced its verdict, he "was inclined to believe that the damages were excessive," but that "after a re-examination of the testimony, and upon careful though the amount awarded is larger than" deliberation," he had concluded that, "alhe would have given, he is unable to "say that the excess is so large" as to warrant "setting the verdict aside as excessive." He also says: "It seems to me reasonable to suppose that a considerable part of this award was given by the jury as compensation for the pain and suffering endured by the plaintiff." We think it must have been the chief element of the award. As to the action of the trial judge in deny. another for an abscess in the left armpit which had resulted from the infection. She remained in the hospital from June 20th to November 13th. She returned to it in January, 1916, for one of the operations and remained about two weeks; was there in February for about the same time for a second operation, and in April for another. In the first operation the broken bones were wired into position; later drainage tubes of considerable length were inserted in the wound and maintained there for a long period, causing the motion for a new trial on the ground ing severe pain by their insertion and removal; and from May, 1916, to the end of the following September the arm was subjected to more than 40 bakings at a high temperature. The plaintiff early complained of pain in the right thigh and in the right leg above the knee, and after leaving the hospital and at the time of trial of a painful condition of the coccyx; but there were no objective symptoms of injury to either. At the time of the trial the wound on that the damages awarded were excessive, the court is of the opinion that said damages are so excessive that justice requires that there should be a new trial on that question unless they are reduced. In the trial no evidence was offered showing that the plaintiff had been subjected to any expense for medical attendance or other service rendered in her recovery from her injuries, so that the two principal elements of damage were the loss of wages, actual and prospective, past and future. Plaintiff's counsel in his brief computes her actual loss in wages from the date of the accident to the date of trial at $10.50 a week, which she was earning prior to the accident, to be $724.50. Then estimating that for the future she would be able "on the average to earn half as much as she has in the past at some kind of employment," he computes that her prospective loss on an expectation of life for 371⁄2 years would be $10,237.50; the two items of pecuniary loss as thus computed together amounting to $10,962. It is not too much to presume that this claim of the pecuniary loss of the plaintiff was urged upon the jury. If the jury accepted this claim of loss as a fair one, then in their total award of damages an allowance of not much in excess of $5,000 was made as compensation for pain and suffering. This, of course, cannot be asserted as a fact. But, if we accept the suggestion of her counsel that for the future the plaintiff will be able on the average to earn half as much as she did before the accident, a suggestion which in the light of the evidence seems reasonable, then his computation of the prospective loss is erroneous, in that there is no attempt to estimate the present pecuniary value of such loss to be paid now in one sum instead of in weekly payments spread over a period of 37 years, which is the average of the two tables of expectancy of life in evidence. Wages at $10.50 a week yield a total of $546 for one year, one-half of which is $273. The present value of an annuity of $273 for 37 years at 4 per cent. as shown by approved tables is $5,225.93. If to that the actual loss of wages shown $724.50, be added, the total pecuniary loss, actual and prospective, is $5,950.43. Computing the present value at 4 per cent. is not unfavorable to the plaintiff inasmuch as an increase in the rate of interest results in a smaller present value of the annuity. Assuming as before that the jury allowed the plaintiff's claim of pecuniary loss of one-half earning power for the future, then the verdict would represent an allowance of about $10,000, for pain and suffering. 821(25) CONTRIBUTORY NEGLIGENCE-QUESTIONS FOR JURY. Plaintiff's testimony that, had he looked, he could have seen a hole in the sidewalk into tributory negligence, when his attention was which he fell, was not conclusive of his conmomentarily diverted from the walk. 6. MUNICIPAL CORPORATIONS 806(2)-DEFECTIVE SIDEWALK-Care Required. defect therein, may assume that the way is safe, A pedestrian on a sidewalk, ignorant of a and need not exercise the highest degree of care by keeping his eyes constantly on the walk, but he need use only the care of an ordinarily pru dent man. 761(1) 7. MUNICIPAL CORPORATIONS Where city authorized railroad contractors, SONS-LIABILITY. We are of the opinion, therefore, upon a consideration of the evidence, that the damages are excessive, and that there was error in the denial of the motion for a new trial on the question of damages, In so far as the exception taken to the denial of the motion for a new trial relates to the question of When changes are being made in street by damages, it is sustained; all the other ex-islative authority for abolition of grade crossbody independent of the city, under direct legceptions are overruled. ings, the city is not thereby relieved from statutory liability for injuries to pedestrians, if the street has not actually been closed to public 9. TRIAL The cause is remitted to the superior court, with directions to grant a new trial on the question of damages only unless within 10 days after the return of the papers in said cause to said court the plaintiff shall file her remittitur in writing of so much of its verdict as is in excess of $11,000; and, travel. 139(1)-DIRECTION OF VERDICT -SUPERIOR COURT. ordering judgment does not exceed power of the Since power of justice of superior court in Supreme Court, which is limited to cases in which there is no legal evidence to support the |