The Providence news. (Providence [R.I.]) 1891-1906, 1904-09-22

SET ASIDE

The appellate division OF the supreme
court has set aside the decision Of Judge
Dubois In favor OF Maria Vizacchero ad-
ministratrix against the Rhode Island
company Judge Dubois awarded the es-
tate OF the plaintiffs deceased husband
$4,000
II is a very interesting opinion that was
handed down I'm this case today. Plain
tins husband was struck and mortally
wounded by one of the defendants cars.
which was coming towards this city. In
! the town OF Johnston. about p IN,
March 3, 1903.
IL was on Atwood avenue that the car
was and the evening was dark. The
headlight enabled the motorman 10 dis
tinguish objects upon the tracks % feet
ahead but he could not stop the car I'm
time to prevent II striking deceased,
whom the motorman says he saw on
his hands and knees on the track. One
witness who was on the car says IL was
going at the rate OF 20 miles an hour at
| the time. According 20 the conductor
and the motorman the car was only going
at the rate OF from nine TO twelve miles
| an hour.
| IL appeared from the evidence Of the
| plaintiffs physician who examined the
plaintiffs intestate at the hospital that
he had been drinking spurious liquor.
but there was no direct evidence OF in
| toxicat alton.
Judge Dubois heard the case, jury trial
having been waived. He decided that
while the plaintiffs intestate was neg
ligent I'm approaching the car as he did.
defendants servant was negligent I'm run
| ming the car so rapidly that with the ap-
pliances at his command he could not
stop II after the man was dlstingulshable
by the headlight and the Judges con-
clusion was that the negligence OF the
defendant was the proximate cause of the
| injury.
Judge Douglas writes the opinion OF the
| full court He thinks that the single Jus
tice erred In finding any neglect OF duty
on the part OF the defendants servants
and also in finding that the intestate's s
negligence was not the approximate cause
OF the injury. Authorities are cited to
show that I'm order TO servo the public
trolley cars must be run rapidly as
safety will permit. and on long stretches
OF country road, where the statutes and
town ordinances fix no limit to speed no
given rate Of speed is per sc excessive.
His honor says THE duty OF travel
or upon an unimpeded country road Is
10 yield the use of the railroad track 20
an approaching street car The wilful
and malicious obstruction OF street
railway company in the use OF its tracks
Is punishable as a msdemeanor. The
car cannot turn out ana so the traveller
must The conduct OF the operator Of
the car may be lawfully predlcated upon
the expectation that the traveller Will oh
serve his duty In that regard. The duty
Of the railroad company towards such
travellers is not 10 stop It's cars when
they appear. but 10 give them sufficient
notice OF the approach OF the car TO en-
able them TO leave the track before the
car arrives"
His honor further says: 1T Is, there
fore. plain that the distance AZ which the
light OF the car can be seen. or the bell
or whistle can BE- heard and understood
| by travellers so as 20 enable them con-
veniently TO leave the track not the dis
tance that the motorman can see ahead.
Is the standard by which the speed OF
n car should be regulated Very strongly
does the opinion declare that the motor
man was not guilty OF negligence and
| that he had no reason 10 anticipate the
approach towards the car or man on
his hands and knees Contributory negli-
gence IS declared 60 have been the cause
/ OF plaintiffs intestate's death
Judgment Is ordered entered for the
I defendant. as it conclusively appears the
plaintiff has no cause Of action against
! the defendant"