Savage v. Public Service R. Co. (N. J.).. 252 State, Myers v. (Md.)

THE

ATLANTIC REPORTER

VOLUME 113

FLYNN et ux. v. SIEZEGA. (No. 5449.) (Supreme Court of Rhode Island. April 8, 1921.)

Municipal corporations 706 (5)-Finding that defendant was negligent in operating automobile on city street held warranted.

In an action for the death of their minor child, who was struck by defendant's automobile at a time when she was on the sidewalk grasping a telephone pole, a finding of the jury that defendant was negligent, which was approved by the trial justice, held warranted by the evidence.

Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge.

mony the afternoon was clear, and at the time of the accident there was no traffic on the street. The defendant, the owner and operator of a seven-passenger jitney car, drove up Randall street on his way to Pawtucket and was proceeding at a moderate rate of speed when he entered North Main street. As he approached the junction of Pleasant street, Grace A. Flynn started from the sidewalk on the west side of North Main street and ran rapidly across the street in a diagonal direction and, at the time of the accident, had reached the sidewalk on the other side of the street and had her arms around a telephone pole within a few inches of the curb. The driver of the automobile and his passengers first saw the child when she was 15 or 18 feet ahead of the automobile. There is testimony to the effect that the driver first turned to the right, then to the left, then again to the right, and struck the child either

Action of trespass on the case by William F. Flynn and his wife, Mary M. Flynn, against Marcin Siezega. Verdict for plaintiffs, and defendant excepted. Exceptions | with the fender or mudguard of his automooverruled, and case remitted, with directions to enter judgment on the verdict. William R. Champlin and Peter M. O'Reilly, both of Providence, for plaintiffs. Brennan & Connolly, of Pawtucket, for defendant.

PER CURIAM. This is an action of trespass on the case for negligence brought by William F. Flynn and his wife, Mary M. Flynn, the father and mother of one Grace A. Flynn, who sue for their own benefit under the statute as the next of kin of said Grace A. Flynn. The action is brought to recover damages for the death of Grace A. Flynn, a minor child, four years and eight months old, who was struck and killed by an automobile driven by the defendant on North Main street, in the city of Providence, on the 10th day of June, 1918.

bile as she stood on the sidewalk grasping the telephone post. There was also other testimony that the driver, as soon as he saw the child, applied the brake of his car and turned to the right to avoid striking the child, but was unsuccessful in avoiding the accident.

From the testimony there is evidence to support the conclusion that the driver could have avoided the accident by continuing straight on his course, or if he had turned to the left without later turning to the right the accident would have been avoided; also that even after turning to the right he had ample opportunity to continue to the right up Pleasant street, thereby avoiding the accident. On the other hand, there is testimony that he could not have avoided the accident either by continuing straight ahead or by turning to the left, and that the turn to the right was the only way whereby the accident could have been avoided.

The accident occurred in the afternoon, on North Main street, near the junction of Pleasant street. North Main street is 36 feet Whatever view one may take of the testiwide from curb to curb and runs north and mony, it seems to be clear that the child was south. Pleasant street runs eastward from on the sidewalk when she was struck, and North Main street. According to the testi-' that the driver of the car drove his car onto

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the sidewalk, and that the same was stopped | brings exceptions. Exceptions overruled, and finally, not by his efforts, but by impact of case remitted, with directions.

the car with the telephone pole with such force as to shake up the passengers in the

car.

The case occupied three days in the trial and at the conclusion of the trial the jury found a verdict in favor of the plaintiff for $3,500. A motion for new trial on the usual grounds was heard by the trial justice, who refused to disturb the finding of the jury. The case is now before this court on bill of exceptions brought by the defendant.

In the argument before this court the question with regard to the amount of damages was not raised by the defendant either on his brief or in argument, and with regard to this subject we see no reason to disturb the verdict of the jury.

Waterman & Greenlaw, of Providence (Charles E. Tilley, of Providence, of counsel), for plaintiff.

Charles H. McKenna, of Providence, for defendant.

RATHBUN, J. This is an action of assumpsit brought to recover for necessaries furnished the defendant's wife. The trial in the superior court resulted in a verdict for the plaintiff for $598. The case is before this court on the defendant's exception to the refusal of the trial court to grant the Said defendant's motion for a new trial. motion alleged that the verdict was against the law and the evidence and the weight thereof.

The question of the defendant's liability The defendant was living apart from his was a fair question of fact and was properly submitted to the jury. The jury have wife. The evidence warrants a finding that found in favor of the plaintiff and against without justifiable cause the defendant failthe defendant, and this finding has been ap-ed to provide his wife with adequate means proved by the trial justice. Upon consideration of the testimony we see no reason to disturb the finding of the jury as thus approved by the trial justice.

We find no merit in the exceptions of the defendant, and all of the exceptions are

overruled. The case is remitted to the superior court, with direction to enter judgment on the verdict.

(43 R. I. 382)

JOYCE v. CARY. (No. 5446.)

of support; that at his request the plaintiff nursed and cared for the defendant's wife for 52 weeks, for which plaintiff charged $5 per week, amounting to $260; that the services rendered were necessary and the charge reasonable; and that plaintiff furnished defendant's wife necessary household supplies and money, which plaintiff saw expended for necessary household supplies for the defendant's wife, to an amount more than equal to the difference between the verdict and $260, the amount charged for care and nursing; that all of said supplies were necessary for the reasonable support of defendant's wife; and that defendant without justifiable cause

(Supreme Court of Rhode Island. April 6, failed to provide either money to purchase

1921.)

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Judge.

any of said supplies or necessary household supplies which might have been used in the place of supplies furnished by the plaintiff. The verdict has been approved by the justice presiding at the trial.

[1] The case was commenced in a district court. The ad damnum as laid in the writ was $100. On the entry day of the writ jury trial was claimed. In the superior court the plaintiff obtained permission to amend the ad damnum from $100 to $500 but the amendment was never made. The plaintiff now moves that she be permitted to amend the ad damnum clause in accordance with the permission granted by the superior court. As the case was tried on the theory that the amendment had been made we will treat the case the same as though the amendment actually had been made before trial. The motion to amend is granted. See Eaton v. Case, 17 R. I. 429, 22 Atl. 943; Cleasby v. Reynolds, 26 R. I. 236, 58 Atl. 786.

Action by Florence G. Joyce against Ru- [2] The verdict was $98 in excess of the judolph F. Cary. Verdict for plaintiff, and risdiction of the court in a case commenced See Walker Ice Co. v. motion for new trial refused, and defendant in a district court.