The Providence news. (Providence [R.I.]) 1891-1906, 1899-07-15
knowing the Existence Of Defect Ia High
Way Il Was Her DUTY TO AVu,d Il.
WHAT THE MAJORITY OF COURT SAY.
Judg, Iilinghasl Filed Dissenting Opinion -Th,
QUESTION Of (onSbuOG Neg lgSucs Was One
Offset for Iuri, ts Holds.

The appellate court in an opinion
handed down today denies the plain
tiffs motion for re-argument in the
case OF Jane Nicholas VS.. George H.
Peck town treasurer Of Bristol. The
plaintiff sued 10 recover damages for
Injuries resulting from her falling over
some stones on a highway near a fence
at noon and jury gave her a verdict.
The appellate court did not think the
verdict justified by the evidence be-
cause II appeared that in the court s
opinion the plaintiff, II she looked for
the stones, would have seen them and
she being bound TO so look, knowing OF
the danger was not in the exercise OF
due care.
In their motion for a re-arGument
counsel for plaintiff urged tina; the
negligence was not argued at the hear
ing This - not SO" says Judge Sti-
ness. who writes the opinion OF the
court six pages of the defendant :
Drief and the bulk OF it's argument, was
on this very point. II is true that the
plaintiffs counsel did not refer TO IL,
possibly for th>>~reason that there was
nothing TO say At any rate; the point
was made and what there was TO say
should have been said then"
AS TO the point made I'm support of
the re-argument that the question OF
contributory negligence was left to the
jury without objection and decided by
them the court cannot nullify their ac-
ton. Judge Stiness says OF numerous
cases cited that they show that the
plaintin has not grasped the point of
our decision which was that the YER
dict was against the evidence. Nearly
all of the cases cited were on excep-
tons and OF course "a court does not
say that a plaintiff was not I'm the ex-
ercise of due care or that verdict IS
against the evidence, on a bill of ex-
ceptions When the pla htiffs state
ment shows that there is nothing on
which to bear an inference of due care
IL is clearly the duty OF the court TO
say So"
Judge Tillinghast files dissenting
opinion in this ease i'm which he says
that he reluctantly acquiesced in the
opinion given when the case was pre-
yiously before the court and that
whether tlb, plaintiff was guilty OF
contribut0ry Negligence in travelling
on tie highway. knowing OF the exist
ence of the defect, was "A question Of
fact for jury. They have decided us
question in the negative and there Is
evidence 10 sustain their findings
After reviewing a number of cases on
the matter Judge Tillinghast contin-
utS Ac tNiutHtc Outltu III the case
at bar was not such as TO necessarily
show that the plaintiff was negligent.
1t appears that the defect IN the high
way consisted OF washout or depres-
sion which was partly filled with
stones, that Is as / understand Ii. the
earth had been washed away leaving
some stones bare in the, depression or
hollow. The plaintiff knew of this de-
feet, and testifies that she was endeav-
oring TO avoid II: that just as she came
near IL. a stone which she had not be-
fore observed caused her TO stumble
and tnat in trying to- recover herself
she caught her foot against hooked
stone in said depression, which threw
her and caused the injury complained
of. In view OF testimony To this ef-
feet, Ii cannot properly be said that
the necessary Inference is that
the plaintiff was guilty OF con-
trIbutory negligeNe. The case was
fully tried. And the jury having found |
IN favor of lhe plaintiff think the YER
iict should stand. A verdict should not
be set aside unless IL is SO palpably and |
nanifestly wrong or 50 clearly against |
he evidence AK TO warrant the pre- |
sumption that the yIry was influenced |
oy passion, prejudice or other improper |
motives"