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 at"I feel sure car tention to the warning. 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.

The young lady sitting at the left end of the front seat testified that from the "top of the hill" she "saw the lady and fellow stooping down"; also, the red light on an automobile. There was no one in the automobile. The woman did not move as the car approached her. Learned afterwards that When halfway her name was Morrison. down the hill, thought the woman was going Witness said she was not a to be struck.

good judge of distances, and did not know how far it was from top of hill to place of accident. This witness some eight months after the accident had signed a statement. 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.

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 that the custom was to use that outbound track on the right-hand side of the street for cars outbound, having in mind the fact that proper

cars could use that track going in the other direction if they saw fit or if necessity required, whether or not she should have taken a look in the other direction and if she failed to do that, as a consequence of her failure to look up toward the track, she received this injury, wheththat would be contributory negligence. If you say, however, that ordinary care did not require her to do that in the particular situation which existed there, if you say that that would amount to extraordinary care and not ordinary care, then she is not bound to take extraordinary care. If ordinary care is consistent with simply looking down at the place where the car ordinarily would run and watchout for that, then she would have complied with the standard I have indicated to you as requisite."

[1] There was therefore conflicting testimony as to the precise place of the accident, as to the speed of the car, as to whether the plaintiff moved towards the track just before the accident, and as to the distance from which she could be seen by those on the car as it approached her. We think there was testimony from which, if believed, the juryer could properly conclude that the plaintiff did not move from the position she had taken, that she was seen by those on the front seat of the electric car at such a distance as to permit the motorman to see that she was in a place of danger and apparently unaware of it, and that he was negligent in not stop-ing ping the car in order to avoid hitting her, in accordance with the doctrine of the last 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 a uniform practice. Any man who has ob

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 was to be seen coming from the city, if she

As a matter of fact the practice was not an invariable one, as some north-bound cars ran regularly on the west track. Plaintiff's proof on this point rested upon the testimony of a witness, who was with the deceased at the

observed, it was customary for north-bound cars to go on the east track. The court said: "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."

then omitted to look in the other direction | looking behind, upon the assumption that it there would certainly be some basis for a was upon the easterly track. This was conclaim of negligence on her part. She says, rely upon the practice as an invariable one." tributory negligence, unless he had a right to however, that she did not see or hear the car. Two other persons standing by her side also say that they did not see or hear it until it was right upon them. The chief reason suggested for this failure to hear the car and any warning it gave by bell or whistle is 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.

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."

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 decedent'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 assumed that the plaintiff was negligent in failing to look towards the park, and conand that the motorman saw she was standtinued to be negligent until she was struck,

In Baldwin v. Heraty, 136 Mich. 15, 98 N. W. 739, which the defendant says is in its facts more nearly like those in the present case 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 appealed. In that case a person riding a bicycle in a northerly direction in the middle of the easterly of two street car tracks, on hearing a car approaching behind him, apparently assumed that the car was on the easterly track, and without looking behind crossed over to the westerly track on which the approaching car really was and was almost immediately

struck and killed. The court said that:

"The evidence conclusively shows that the deceased, knowing that a car was coming, and

apparently did not appreciate her danger or hear his warning signal, and he then had the opportunity to avoid striking her by using the appliances under his control for stopping the car and failed to do so, the company would be liable notwithstanding her negligence. No exception was taken to this portion of the charge. Therefore, under this statement of the law, even if the jury were

of the opinion that she was negligent in not looking towards the park, and in standing where she did, that would not be decisive of

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.

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 prac tically 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 deliberation," he had concluded that, "al

though the amount awarded is larger than" he 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:

[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 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

"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.

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
Then
prior to the accident, to be $724.50.
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 em-
ployment," he computes that her prospective
loss on an expectation of life for 371⁄2 years
would be $10,237.50; the two items of pecuni-
ary loss as thus computed together amount-
ing to $10,962. It is not too much to pre-
sume 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 dam-
ages an allowance of not much in excess of
$5,000 was made as compensation for pain
and suffering. This, of course, cannot be as-
serted as a fact. But, if we accept the sug-
gestion 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 ac-
cident, a suggestion which in the light of the
evidence seems reasonable, then his compu-
tation 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 pay-
ments spread over a period of 37 years,
which is the average of the two tables of ex-
pectancy 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 val-
ue 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. Com-
puting 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. Assum-
ing as before that the jury allowed the plain-
tiff's claim of pecuniary loss of one-half earn-
ing power for the future, then the verdict
would represent an allowance of about $10,-
000, for pain and suffering.

77

if such remittitur be filed, to enter judgment for the plaintiff on the verdict as thus reduced by the remittitur.

(Supreme Court of Rhode Island.
CORPORATIONS 821(20)
1. MUNICIPAL
DEFECTIVE SIDEWALKS CONTRIBUTORY
NEGLIGENCE-QUESTIONS FOR JURY.

Pedestrian's contributory negligence in falling into hole in sidewalk is generally for the jury, unless the only proper inference from the facts is that an ordinarily prudent man would not have acted as the pedestrian did. * 803(1) 2. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS-CARE REQUIRED. A pedestrian must be on his guard against such perils only as a reasonable man would apprehend in like circumstances.

3.

MUNICIPAL CORPORATIONS
DEFECTIVE SIDEWALKS

821(23) CONTRIBUTORY

NEGLIGENCE-QUESTION FOR JURY.

Presence of fence across street and sidewalks beyond which a bridge was being built was not as a matter of law notice to pedestrian of unsafe condition of sidewalk on part of street not closed by the fence. 4. MUNICIPAL CORPORATIONS DEFECTIVE SIDEWALKS NEGLIGENCE QUESTIONS for Jury.

821(23) CONTRIBUTORY

Presence of street obstruction, with sign, barring passage, was not as a matter of law notice to pedestrian on sidewalk that the sidewalk was closed or unsafe. 5. MUNICIPAL CORPORATIONS SIDEWALKS

DEFECTIVE

821(25) CONTRIBUTORY

NEGLIGENCE-QUESTIONS FOR JURY. Plaintiff's testimony that, had he looked, he could have seen a hole in the sidewalk into which he fell, was not conclusive of his contributory negligence, when his attention was momentarily diverted from the walk. 6. MUNICIPAL CORPORATIONS 806(2)-DEFECTIVE SIDEWALK-CARE REQUIRED. A pedestrian on a sidewalk, ignorant of a defect therein, may assume that the way is safe, 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 prudent man. 7. MUNICIPAL CORPORATIONS

761(1) STREET IMPROVEMENTS-INJURIES TO PERSONS-CONTROL OF STREET.

Where city authorized railroad contractors, building a viaduct to carry street over tracks, to use part of street for storing materials, the city was not thereby absolved from liability to pedestrian, injured by defect in sidewalk outside fence barring the street, and between it and a warning sign placed by the contractors. 799 CORPORATIONS 8. MUNICIPAL STREET IMPROVEMENTS-INJURIES TO PER

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 When changes are being made in street by for a new trial relates to the question of body independent of the city, under direct legdamages, it is sustained; all the other ex-islative authority for abolition of grade crossceptions 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.

Since power of justice of superior court in ordering judgment does not exceed power of the Supreme Court, which is limited to cases in which there is no legal evidence to support the