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THE

ATLANTIC REPORTER

VOLUME 91

(37 R. I. 96)

Action by Charles T. Frey against the FREY v. RHODE ISLAND CO. (No. 4742.) Rhode Island Company. After a verdict for (Supreme Court of Rhode Island. July 10, plaintiff a new trial was granted unless 1914.)

plaintiff would enter a remittitur, and both 1. TIME (8 9*)-COMPUTATION.

plaintiff and defendant excepted. Plaintiff's When a period of time is to be reckoned from a certain day, the day from which the time exceptions overruled, and defendant's susis to be reckoned is excluded from the compu- tained and cause remanded. tation.

William R. Champlin, of Providence, for [Ed. Note:- For other cases, see Time, Cent. plaintiff. Joseph C. Sweeney and Alonzo R. Dig. $$ 11-32; Dec. Dig. § 9.*] 2. Courts ($ 65*)—TERMS OF COURT-TIME OF Williams, both of Providence, for defendant. HOLDING="Tó"-"FROM."

Gen. Laws 1909, c. 275, § 3, provides there SWEETLAND, J. This is an action of shall be a vacation of the superior court from trespass on the case to recover damage for the second Monday in July to the third Monday injuries to the plaintiff's person and to his in September of each year, and section 11 provides that in vacation the superior court shall automobile alleged to have been received not hear jury trials. Chapter 32, $ 12, provides through the negligence of the defendant. that whenever time is to be reckoned from any The case was tried before a justice of the day such day shall not be included in the com- superior court sitting with a jury and reputation. lleld, that as the word "to," like the word "from," is generally a word of 'exclusion, sulted in a verdict for the plaintiff for $8,and as chapter 275, § 2, requires the superior 000. The defendant duly filed its motion for court to hold sessions at certain points on the a new trial. Said justice in his decision on third Monday in September, the superior court may hear jury trials on the second Monday in the motion ordered that a new trial should July.

be granted, on the ground that the damages [Ed. Note.--For other cases, see Courts, Cent. awarded by the jury were excessive, unless Dig. $$ 230, 246; Dec. Dig. $ 65.*]

within five days after said decision the plain3. STREET RAILROADS (8 99*)-INJURIES TO tiff should remit all of said verdict in excess PERSONS AT CROSSINGS-DUTY TO LOOK AND

of $6,000. The plaintiff did not file his reLISTEN. A motorist about to cross street railway

mittitur. The plaintiff and the defendant tracks is bound to look along the track imme- each filed an exception to said decision. The diately before driving upon it.

case is before us upon the plaintiff's excep[Ed. Note.--For other cases, see Street Rail- tion to the decision of said justice granting roads, Cent. Dig. $8 209–216; Dec. Dig. $ 99.*]

a new trial, and upon the defendant's ex4. STREET RAILROADS (8 114*) COLLISION WITH AUTOMOBILE EVIDENCE

ceptions to certain ruiings of said justice

SUFFICIENCY.

made during the progress of the trial and to In an action for personal injuries received the decision of said justice on said motion by a motorist and for injuries to his automobile for a new trial. in a collision with a street car, evidence held insufficient to sustain a verdict against the street

[1, 2] Said trial was commenced during a railway company not showing the motorist's session of the superior court holden at East want of contributory negligence.

Greenwich within and for the county of Kert [Ed. Note.-For other cases, see Street Rail on the 8th day of July, 1913, and continued roads, Cent. Dig. $8 239-250; Dec. Dig. $through the 8th, 9th, 10th, 11th, 12th, and 114.*1 5. APPEAL AND ERROR (8 1005*)—REVIEW- the 14th day of July was the second Monday

14th days of July, 1913. In the year 1913 VERDICTS.

A verdict approved by the trial court will of July in that year. On said 14th day of be accorded great deference on appeal.

July, 1913, the counsel made their arguments [Ed. Note.-For other cases, see Appeal and to the jury, the justice delivered his charge, Error, Cent. Dig. $8 3860–3876, 3948-3950; and the jury thereupon considered the case Dec. Dig. $ 1005.*]

and rendered their verdict. On said day the Vincent, J., dissenting in part.

defendant moved that the case be taken froin Exceptions from Superior Court, Kent the jury and passed on the ground that the County ; John W. Sweeney, Judge.

justice and the jury could not legally sit

*For other cases see same topic and section NUMBER in Dec. Dig. & im. Dig. Key-No. Series & Rep'r Indexes

91 A-1

in the trial of said case on that day, because date, or act done, or the time of any act it is provided by statute that there shall be done, such day, date, or the day when such a vacation of the superior court from the act is done, shall not be included in such second Monday in July to the third Monday computation." This is conclusive of the quesin September in each year. The justice de. tion before us, for such an interpretation of nied said motion and the defendant duly ex- the word "from," in the section establishing cepted to said ruling. This exception is now a vacation in the superior court, is not inbefore us. Chapter 275, $ 3, Gen. Laws 1909, consistent with the manifest intent of the provides as follows:

General Assembly, nor is it repugnant to “There shall be a vacation of the superior some other part of the statute. It is urged court from the second Monday in July to the that such an interpretation will carry said third Monday in September in each year."

vacation into the third Monday of September And section 11 of the same chapter pro- and interfere with the beginning of the vides as follows:

sessions of the superior court on such date. “In vacation the superior court shall not hear There is no force in that contention. jury trials (except in special statutory, cases); have no rule for the interpretation of stat

We or cognizances."

utes which requires the day to which a periAlthough it might be desirable that the od of time extends to be included in such superior court should have authority to com- period. The word "to," like the word "from,” plete in the early days of vacation a jury trial is generally a word of exclusion. In a sense commenced during a session and not finished both the second Monday of July and the before the close of the session, thus prevent- third Monday of September are days from ing a loss to the state and to the parties, which the period of vacation is to be reckyet in view of the prohibitive language of oned, and hence both are to be excluded. the statute we are of the opinion that said Furthermore, there is a specific provision of court does not have such power. The ques: law contained in chapter 275, $ 2, Gen. Laws tion involved in this exception is whether 1909, that the superior court shall hold sesthe second Monday of July in each year is sions in South Kingstown and Providence or is not a part of the vacation of the su- on the third Monday of September in each perior court; whether the word “from” in year, thus clearly placing that day within said section 3 shall be interpreted as a word the period of the session of the court and not exclusive or inclusive of said second Monday that of vacation. of July.

It is urged that this interpretation is in: It is the well-settled rule that when a pe- consistent with the settled practice of the suriod of time is to be reckoned from a certain perior court, which each year has not carried day, unless there is something in the context the business of its sessions into the second or the circumstances to indicate a different Monday of July. This interpretation does intention, the day from which the time is to not require the superior court to hold jury be reckoned shall be excluded from the com- trials on said second Monday of July. The putation and from the period. In Ordway justices of that court can so arrange the busiv. Remington, 12 R. I. 319, 34 Am. Rep. 646, ness of the court, just previous to the close this court construed a lease which demised of the sessions before vacation, that jury the tenement let “from the first day of Sep- trials and other matters which may not be tember now next ensuing, for and during the heard in vacation will surely not extend befull end and term of one year and nine yond the period of the sessions. If to acmonths thence next ensuing,” and held that: complish that they have as a general rule

"If the demise is from a given day and there taken up none of the regular business of the is nothing else to indicate the intention, then, different sessions on the second Monday of unless there is some particular reason for holding otherwise, according to the weight of July, that is plainly a matter within their authority we think the given day must be ex- power and discretion. · It is further urged cluded.'

that this interpretation is inconsistent with In Millard v. Willard, 3 R. I. 42, the court the practice of this court with regard to its treated this subject without reference to the own sessions. Our attention is called to statute dealing with construction, which we chapter 275, § 1, Gen. Laws 1909, which proshall consider later, and said:

vides that: "In all cases when a point of time or the do "The Supreme Court shall be in session at ing of an act is referred to merely as a termi- Providence from the first Monday in October nus from which to measure time, the day of the to the second Monday in July in every year.” date or of the act should be excluded."

And it is argued that if the word “from,” We have, moreover, in this state the fol- in the section concerning the vacation of the lowing rule for the reckoning of time from superior court, shall be interpreted to exclude any day when such provision occurs in a the second Monday of July from such vacastatute. Sections 1 and 12, c. 32, Gen. Laws tion, a like interpretation should exclude the 1909, provide that unless such construction first Monday in October from our session. is inconsistent with the manifest intent of This contention disregards the further lanthe General Assembly, or is repugnant to guage of said section 1, which also provides some other part of the same statute, “when that this court shall be in session "at such ever time is to be reckoned from any day, I other times as said court shall deem proper.".

We have permitted motions to be made re- , the direction of a verdict in its favor. We turnable before us on the first Monday of do not find error in this ruling. October, and it has been the practice of the Both the plaintiff and the defendant excourt to hear other matters which have been cepted to the decision of the justice upon the assigned to that day. The court has done defendant's motion for a new trial. We will this without formal determination as to consider these exceptions together. We agree whether said first day of October was or was with said justice that the amount of the not the first day of the session named in the verdict is excessive. After a consideration statute. It is clearly in accordance with the of all the testimony, we think the amount authority given to us by law, and is not a of damage fixed by said justice is also much practice inconsistent with the interpretation too large. We shall not order a remittitur, which we are now making.

however, as in our opinion there should be The superior court is held by the various a new trial on the question of liability as justices of that court in the several coun- well as of damages. ties of the state at different times in each [3-5] It appears in the transcript of the year, in accordance with the provisions of evidence that on September 2, 1912, the plainsection 2, c. 275, Gen. Laws 1909, as follows: tiff was operating an automobile, owned by

"The superior court shall hold its sessions him, on Bay View avenue in the town of every year at the times and places following, to Warwick; that Bay View avenue runs from wit, at South Kingstown, within and for the the west on a steep downgrade into the Old county of Washington, on the third Monday of September, November, February, and April; Post Road at right angles with said road; at Newport, within and for the county of New- that the plaintiff proceeded easterly down port, on the first Monday of October, Decem- said grade into the Old Post Road, and when

, within and for the county of Kent, on the his automobile was crossing the electric street fourth Monday of October, January, March, railway track of the defendant, which lies on and June; and at Providence, for the counties the westerly side of the old Post Road, his of Providence and Bristol, on the third Monday automobile was struck by an electric car of in , second Monday in July of the following year: the defendant, which was proceeding in a Provided, that there shall be no jury trials in southerly direction, and the plaintiff and his Providence between the first Monday of July, automobile were each injured; that to a pereach year, except by agreement of parties with son coming down Bay View avenue towards the consent of the court."

the Old Post Road the view to the north onto It may be observed that with the exception said road is obstructed for about 21 feet of the session at Providence in each year west of said road by a bank along the norththere is no specific provision as to the time erly side of Bay View avenue with a fence of termination of the various sessions of the and a growth of bushes and shrubs on top court. Each session of necessity is closed of said bank; that said bank at the corner on the day before the opening of a new ses- of the Old Post Road and Bay View avenue sion in the same county and also on the is about 312 or 4 feet high; that on top of day before the beginning of vacation. It may said bank along the westerly side of the be urged that the construction which we Old Post Road is a stone wall which meets have placed upon the provision regarding va- said picket fence at the corner; that from cation is repugnant to the provision con- said corner to the westerly rail of the detained in section 2, which .continues the ses- fendant's track is 15 feet; that between said sion at Providence “to the second Monday in corner and the defendant's track is a large July,” thus excluding the second Monday in tree and a small one; that there was a top July, from the session; and that this indi- or hood over the defendant's automobile, cates the intent of the General Assembly to which top was up and in place over the make the second Monday of July a part of machine, and the side curtains of said top vacation. We do not find such repugnance. were in position, thus obstructing the plainThis provision relates solely to the session tiff's view on either side while he was sitting in the counties of Providence and Bristol upright on the seat. The plaintiff testified and has no reference to the sessions in the that when he was coming down Bay View other counties of the state. The sessions in avenue he looked along the defendant's track each county open and close without reference to the north at the last point from which to the sessions in any other county; but the he was able to do so, before his view was obprovision for vacation is a general one; and structed by said bank and bushes, and saw in accordance with the rule for construction no car of the defendant approaching from prescribed in chapter 32, $ 12, Gen. Laws the north; that he then proceeded down the 1909, we are forced to hold that said vaca- grade, and did not again look along said tion begins on the day after the second track until the front wheels of his autoMonday in July in each year. There was no mobile were on the track; that, as the hind error in the ruling of said justice denying wheels of his automobile were just passing the defendant's motion to take the case from onto the first or west rail of the track, he the jury on July 14, 1913.

was struck by a car of the defendant proThe defendant excepted to the ruling of ceeding from the north. said.justice denying defendant's motion for It was the duty of the plaintiff to look

along the defendant's track immediately be part of the period within which the superior fore driving upon it. He did not do so. A court may try jury cases? This leads to the finding that his failure thus to look did not consideration of the meaning of the words contribute to the accident cannot be upheld “from the second Monday.” In many wellin view of the other circumstances of the considered opinions the word "from" is concase. There is some testimony tending to strued to include the first-named day. support the contention that the defendant's In Swift v. Tousey, 5 Ind. 196, the court motorman might have stopped his car and held that, where a computation of time is to prevented the accident after it should have be made from any particular act or time, the been plain to him, in the exercise of reason- word “from” means that the day on which able care, that the plaintiff was about to the act was done or the day of the date is drive upon the track and place himself in a to be included. position of danger; and that the failure of In Evans v. Sander, 8 Port. (Ala.) 497, 33 the motorman to do so constituted negligence Am. Dec. 297, it was held that a note for a in the defendant. On the other hand, there certain sum, with interest "from 1835," means is much testimony to the effect that, after from the beginning of the year 1835, and not the actions of the plaintiff made it apparent from or after its expiration. that he was about to drive on the track re Numerous other authorities to the same gardless of the danger, there was no op-effect could be cited if necessary. portunity for said motorman to stop his car The majority opinion seems to be based and prevent the collision; and that in the on section 12 of chapter 32 of our statute and circumstances of the case the motorman act- upon the case of Ordway Brothers & Co. v. ed with reasonable care and due regard for Remington & Perkins, 12 R. I. 319, 34 Am. the plaintiff's safety. We are not unmindful Rep. 646. The section of the statute referred of the fact that, so far as it relates to the to is as follows: liability of the defendant, the justice presid “Sec. 12. Whenever time is to be reckoned ing in the superior court has refused to dis- from any day, date, or act done, or the time approve of the jury's verdict. In view of the when such act is done, shall not be included in

of any act done, such day, date, or the day rule in Wilcox v. R. I. Co., 29 R. I. 292, 70 such computation.” Atl. 913, it is with hesitation that we disturb

In my view of the case this statute has that finding. However, the approval which nothing to do with the question as to whether said justice gives of the verdict is not posi- the second Monday in July is or is not a part tively expressed, if properly it can be called of the court vacation and was not designed or an approval at all. The language of his re- intended to apply thereto. In section 3 of script is, “I cannot say that their verdict is chapter 275, before referred to, the beginning against the fair preponderance of the evi- and end of the vacation of the superior court dence.” For a plaintiff to recover, his cause is definitely fixed. To ascertain when such must be supported by a fair preponderance of vacation begins, or when it ends, no reckonthe evidence. It is hardly enough that it is ing or computation is required, necessary, or not against the fair preponderance of the evi

even useful. This statute undoubtedly was dence.

In view of the nature of this deci- intended to provide a method for ascertaining sion of the judge, and the strong opinion when a certain number of days would exwhich we have, after an examination of the pire as, for instance, where a party is allowevidence, that the preponderance of the evi-ed by the court a period, expressed in days, dence both as to the defendant's liability and for the performance of some act. A computaas to the due care of the plaintiff is against tion would then be necessary to ascertain the the finding of the jury, we think the case termination of the period and in such comin justice to the defendant should be sub-putation it is provided by section 12 of chapmitted to the consideration of another jury. ter 32 that the first day shall be excluded. The plaintiff's exception is overruled. The

In the case of Ordway Brothers & Co. v. defendant's exception to the decision upon Remington & Perkins, supra, the court conthe motion for a new trial is sustained. The sidered the language used in a lease with a other exceptions of the defendant are over- view to determining the day when it began ruled, and the case is remitted to the superior to run. The words of the lease were “from court for a new trial.

the first day of September now next ensuing,"

and the court in considering this language VINCENT, J. (dissenting). I am obliged to said, referring to the 1st day of September, dissent from that portion of the majority that: opinion which sustains the action of the su “The day is to be included or excluded acperior court in continuing and completing the cording to the apparent intention of the partrial of a jury case on the second Monday in ties to the lease; but if the demise is 'from' July. Our statute provides (Gen. Laws, 1909, a given day, and there is nothing else to indi

cate the intention, then unless there is some c. 275, § 3) that:

particular reason for holding otherwise, accord"There shall be a vacation of the superior ing to the weight of authority, we think the court from the second Monday in July to the given day must be excluded." third Monday in September in each year.'

This case does not seem to me to supThe question is: Is the second Monday in port the position taken in the majority opinJuly to be included in the vacation, or is it a ion. The substance of the opinion is that the

given day should be excluded only when uation, the liability of the operator of such cars there is nó apparent intention of the parties for loss or damage occurring while a shipment,

which it was directed to ship via such express otherwise, and there is no particular reason

company, was in possession of the express comfor holding the other way.

pany, was limited to the valuation upon which In none of our statutes fixing the sessions the express company's rate was based, though of our court is there any provision effecting its bill of lading contained no limitation of liathe division of a week, but, on the contrary,

bility based upon an agreed valuation.

[Ed. Note. For other cases, see Carriers, it is evident from such provisions that it was Cent. Dig. $S 815–828; Dec. Dig. § 180.*] the intention of the General Assembly that 3. APPEAL AND ERROR ($ 1050*)-HARMLESS courts in this state should begin and end ERROR-ADMISSION OF EVIDENCE, their sessions with the week. With this In an action against an initial carrier for plain intent of the General Assembly it seems loss or damage to a shipment while in the cus

tody of a connecting carrier, evidence as to the to me clear that the second Monday in July course of dealings between the parties admitted should be included in the vacation. Further in support of defendant's contention that it was than that, the fact that our courts have for a simply an agent of the shipper to transport the period of more than nine years recognized goods and deliver them to the connecting carthe second Monday in July as a part of the for them, was not prejudicial to plaintiff, where

rier, and that it had no further responsibility vacation of the superior court would be, in it was held that defendant was an initial carthe language of the Ordway Case, a “particu- rier liable for loss occurring while the shiplar reason” for holding that the given day ment was in the custody of the connecting car

rier. should not be excluded.

[Ed. Note.-For other cases, see Appeal and In the other portions of the majority opin- Error, Cent. Dig. 88 1068, 1069, 4153-4157, ion I concur.

4166; Dec. Dig. § 1050.*]

4. CARRIERS (8 185*) - Loss OR INJURY TO (36 R. I. 558)

GOODS-ACTIONS-EVIDENCE. GLENLYON DYE WORKS v. INTERSTATE

In an action against an initial carrier EXPRESS CO. et al. (No. 4670.)

which made no through rate for the loss of a

shipment while in the custody of a connecting (Supreme Court of Rhode Island. July 3, carrier, whose rates filed with and approved by. 1914.)

the Interstate Commerce Commission specified 1. CARRIERS ($ 180*) — LOSS OR INJURY TO a rate based upon a stipulated valuation unless GOODS-LIABILITY OF INITIAL CARRIER.

a higher valuation was disclosed, evidence as to Though the operator of electric express the course of dealings between plaintiff and decars fixed no through rate to points beyond its fendant, tending to show that defendant's rates line and rendered no bill for through charges, were based partly upon the rate of the express but charged a flat rate per 100 pounds, irre company and that plaintiff had a thorough spective of the character of the goods or their knowledge of the express company's rates with value, which was paid upon weekly bills, wheth- reference to which the parties contracted, was er the charges of an express company, to which properly admitted. it delivered shipments, were prepaid or collect

[Ed. Note.-For other cases, see Carriers, ed from the consignee, it advancing the express Cent. Dig. 88 835–850; Dec. Dig. 8 185.*] charges when they were prepaid and placing the amount in a separate item in its bills un

Exceptions from Superior Court, Provider the head of "Advances," where, by its bills dence and Bristol Counties; Willard B. Tanof lading, it undertook to carry shipments to ner, Presiding Justice. their destination on the line of the express com Action by the Glenlyon Dye Works against but was the initial carrier, within the Inter- the Interstate Express Company and others. state Commerce Act (Act Feb. 4, 1887, c. 104, The trial court rendered a decision for plain24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), tiff for an insufficient amount, and it brings and under the express provisions of the Car- exceptions. Exceptions overruled. mack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [Ú. S. Comp. St. Harold W. Thatcher, Seeber Edwards, and Supp. 1911, p. 1307]), it was liable for loss of, Edwards & Angell, all of Providence, for or damage to, the goods while in the express company's possession notwithstanding a provi- plaintiff. Joseph C. Sweeney, Nathaniel W. sion of the bill of lading restricting its liabil- Smith, Frank P. Ayer, and Clifford Whipple, ity to loss or damage occurring on its own road. all of Providence, for defendants.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 815-828; Dec. Dig. § 180.*]

SWEETLAND, J. This is an action on 2. CARRIERS ($ 180*) — Loss OR INJURY TO the case originally brought against the Inter

Goods -- LIMITATION OF LIABILITY WHERE
VALUE IS Not DISCLOSED.

state Express Company, as a common carWhere the operator of electric express cars rier, to recover for the value of three shipmade no through rate to a point on the line of ments of goods lost in transit between Philan express company and had no such rate on lipsdale, in the town of East Providence, and file with the Interstate Commerce Commission, but charged for transportation to the point of the city of New York. During the travel of connection with the express company a flat rate the case, by agreement of counsel, the Rhode per 100 pounds, plus the charges of the ex- Island Company was made a party defendpress company, which it advanced, and a shipper had dealt with the express company for

ant. years, had actual knowledge of its rates which, The claim of the plaintiff for loss upon as filed with and approved by the Interstate said three shipments amounted to $2,796.72, Commerce Commission, specified a rate based with interest amounting to $751,62, in all to upon an agreed valuation unless a higher valuation was disclosed, and a higher rate paid, and the sum of $3,548.34. The case was tried beknew that there were two rates based upon val-fore a justice of the superior court sitting *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

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