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ATLANTIC REPORTER

VOLUME 91

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tation.

[Ed. Note. For other cases, see Time, Cent. Dig. §§ 11-32; Dec. Dig. § 9.*] 2. COURTS (§ 65*)-TERMS OF COURT-TIME OF HOLDING "To"-"FROM."

Gen. Laws 1909, c. 275, § 3, provides there shall be a vacation of the superior court from the second Monday in July to the third Monday in September of each year, and section 11 provides that in vacation the superior court shall not hear jury trials. Chapter 32, § 12, provides that whenever time is to be reckoned from any day such day shall not be included in the computation. Held, that as the word "to," like the word "from," is generally a word of exclusion, and as chapter 275, § 2, requires the superior court to hold sessions at certain points on the third Monday in September, the superior court may hear jury trials on the second Monday in July.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 230, 246; Dec. Dig. § 65.*]

3. STREET RAILROADS (§ 99*)-INJURIES TO PERSONS AT CROSSINGS-DUTY TO LOOK AND

LISTEN.

A motorist about to cross street railway tracks is bound to look along the track immediately before driving upon it.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. § 99.*] 4. STREET RAILROADS (§ 114*) COLLISION WITH AUTOMOBILE EVIDENCE SUFFICIENCY.

In an action for personal injuries received by a motorist and for injuries to his automobile in a collision with a street car, evidence held insufficient to sustain a verdict against the street railway company not showing the motorist's want of contributory negligence.

[Ed. Note. For other cases, see Street Rail

roads, Cent. Dig. §§ 239-250; Dec. Dig. 8 114.*]

5. APPEAL AND ERROR (§ 1005*)-REVIEWVERDICTS.

A verdict approved by the trial court will be accorded great deference on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. § 1005.*]

Vincent, J., dissenting in part.

Action by Charles T. Frey against the Rhode Island Company. After a verdict for plaintiff a new trial was granted unless plaintiff would enter a remittitur, and both plaintiff and defendant excepted. Plaintiff's exceptions overruled, and defendant's sustained and cause remanded.

William R. Champlin, of Providence, for plaintiff. Joseph C. Sweeney and Alonzo R. Williams, both of Providence, for defendant.

SWEETLAND, J. This is an action of trespass on the case to recover damage for injuries to the plaintiff's person and to his automobile alleged to have been received through the negligence of the defendant. The case was tried before a justice of the superior court sitting with a jury and resulted in a verdict for the plaintiff for $8,-. 000. The defendant duly filed its motion for a new trial. Said justice in his decision on the motion ordered that a new trial should be granted, on the ground that the damages awarded by the jury were excessive, unless within five days after said decision the plaintiff should remit all of said verdict in excess of $6,000. The plaintiff did not file his remittitur. The plaintiff and the defendant each filed an exception to said decision. The case is before us upon the plaintiff's exception to the decision of said justice granting a new trial, and upon the defendant's exceptions to certain rulings of said justice made during the progress of the trial and to the decision of said justice on said motion for a new trial.

[1, 2] Said trial was commenced during a session of the superior court holden at East Greenwich within and for the county of Kent on the 8th day of July, 1913, and continued

through the 8th, 9th, 10th, 11th, 12th, and 14th days of July, 1913. the 14th day of July was the second Monday In the year 1913 of July in that year. On said 14th day of July, 1913, the counsel made their arguments to the jury, the justice delivered his charge, and the jury thereupon considered the case and rendered their verdict. On said day the 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. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-1

"There shall be a vacation of the superior court from the second Monday in July to the third Monday in September in each year."

And section 11 of the same chapter provides as follows:

"In vacation the superior court shall not hear jury trials (except in special statutory cases), petitions for divorce, or motions to default recognizances."

We

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 some other part of the statute. It is urged that such an interpretation will carry said vacation into the third Monday of September and interfere with the beginning of the sessions of the superior court on such date. There is no force in that contention. have no rule for the interpretation of statutes which requires the day to which a period of time extends to be included in such period. The word "to," like the word "from," is generally a word of exclusion. In a sense both the second Monday of July and the third Monday of September are days from which the period of vacation is to be reckoned, and hence both are to be excluded. Furthermore, there is a specific provision of law contained in chapter 275, § 2, Gen. Laws 1909, that the superior court shall hold sessions in South Kingstown and Providence on the third Monday of September in each year, thus clearly placing that day within the period of the session of the court and not that of vacation.

Although it might be desirable that the superior court should have authority to complete in the early days of vacation a jury trial commenced during a session and not finished before the close of the session, thus preventing a loss to the state and to the parties, yet in view of the prohibitive language of the statute we are of the opinion that said court does not have such power. The ques tion involved in this exception is whether the second Monday of July in each year is or is not a part of the vacation of the superior court; whether the word "from" in said section 3 shall be interpreted as a word exclusive or inclusive of said second Monday of July.

It is the well-settled rule that when a period of time is to be reckoned from a certain day, unless there is something in the context or the circumstances to indicate a different intention, the day from which the time is to be reckoned shall be excluded from the computation and from the period. In Ordway v. Remington, 12 R. I. 319, 34 Am. Rep. 646, this court construed a lease which demised the tenement let "from the first day of September now next ensuing, for and during the full end and term of one year and nine months thence next ensuing," and held that: "If the demise is from a given day and there is nothing else to indicate the intention, then, unless there is some particular reason for holding otherwise, according to the weight of authority we think the given day must be excluded."

In Millard v. Willard, 3 R. I. 42, the court treated this subject without reference to the statute dealing with construction, which we shall consider later, and said:

"In all cases when a point of time or the doing of an act is referred to merely as a terminus from which to measure time, the day of the date or of the act should be excluded."

We have, moreover, in this state the following rule for the reckoning of time from any day when such provision occurs in a statute. Sections 1 and 12, c. 32, Gen. Laws 1909, provide that unless such construction is inconsistent with the manifest intent of the General Assembly, or is repugnant to some other part of the same statute, "whenever time is to be reckoned from any day,

The

It is urged that this interpretation is inconsistent with the settled practice of the superior court, which each year has not carried the business of its sessions into the second Monday of July. This interpretation does not require the superior court to hold jury trials on said second Monday of July. justices of that court can so arrange the business of the court, just previous to the close of the sessions before vacation, that jury trials and other matters which may not be heard in vacation will surely not extend beyond the period of the sessions. If to accomplish that they have as a general rule taken up none of the regular business of the different sessions on the second Monday of July, that is plainly a matter within their power and discretion. It is further urged that this interpretation is inconsistent with the practice of this court with regard to its own sessions. Our attention is called to chapter 275, § 1, Gen. Laws 1909, which provides that:

"The Supreme Court shall be in session at Providence from the first Monday in October to the second Monday in July in every year.”

And it is argued that if the word "from," in the section concerning the vacation of the superior court, shall be interpreted to exclude the second Monday of July from such vacation, a like interpretation should exclude the first Monday in October from our session. This contention disregards the further language of said section 1, which also provides that this court shall be in session "at such other times as said court shall deem proper."

We have permitted motions to be made returnable before us on the first Monday of October, and it has been the practice of the court to hear other matters which have been assigned to that day. The court has done this without formal determination as to whether said first day of October was or was not the first day of the session named in the statute. It is clearly in accordance with the authority given to us by law, and is not a practice inconsistent with the interpretation which we are now making.

The superior court is held by the various justices of that court in the several counties of the state at different times in each year, in accordance with the provisions of section 2, c. 275, Gen. Laws 1909, as follows: "The superior court shall hold its sessions every year at the times and places following, to wit, at South Kingstown, within and for the county of Washington, on the third Monday of September, November, February, and April; at Newport, within and for the county of Newport, on the first Monday of October, December, March, and June; at East Greenwich, within and for the county of Kent, on the fourth Monday of October, January, March, and June; and at Providence, for the counties of Providence and Bristol, on the third Monday in September, and thence continuously to the second Monday in July of the following year: Provided, that there shall be no jury trials in Providence between the first Monday of July, inclusive, and the first Monday of October in each year, except by agreement of parties with the consent of the court."

court.

It may be observed that with the exception of the session at Providence in each year there is no specific provision as to the time of termination of the various sessions of the Each session of necessity is closed on the day before the opening of a new session in the same county and also on the day before the beginning of vacation. It may be urged that the construction which we have placed upon the provision regarding vacation is repugnant to the provision contained in section 2, which.continues the session at Providence "to the second Monday in July," thus excluding the second Monday in July, from the session; and that this indicates the intent of the General Assembly to make the second Monday of July a part of vacation. We do not find such repugnance. This provision relates solely to the session in the counties of Providence and Bristol and has no reference to the sessions in the other counties of the state. The sessions in each county open and close without reference to the sessions in any other county; but the provision for vacation is a general one; and in accordance with the rule for construction prescribed in chapter 32, § 12, Gen. Laws 1909, we are forced to hold that said vacation begins on the day after the second Monday in July in each year. There was no There was no error in the ruling of said justice denying the defendant's motion to take the case from the jury on July 14, 1913.

The defendant excepted to the ruling of said justice denying defendant's motion for

the direction of a verdict in its favor. We do not find error in this ruling.

Both the plaintiff and the defendant excepted to the decision of the justice upon the defendant's motion for a new trial. We will consider these exceptions together. We agree with said justice that the amount of the verdict is excessive. After a consideration of all the testimony, we think the amount of damage fixed by said justice is also much too large. We shall not order a remittitur, however, as in our opinion there should be a new trial on the question of liability as well as of damages.

[3-5] It appears in the transcript of the evidence that on September 2, 1912, the plaintiff was operating an automobile, owned by him, on Bay View avenue in the town of Warwick; that Bay View avenue runs from the west on a steep downgrade into the Old Post Road at right angles with said road; that the plaintiff proceeded easterly down said grade into the Old Post Road, and when his automobile was crossing the electric street railway track of the defendant, which lies on the westerly side of the Old Post Road, his automobile was struck by an electric car of the defendant, which was proceeding in a southerly direction, and the plaintiff and his automobile were each injured; that to a person coming down Bay View avenue towards the Old Post Road the view to the north onto said road is obstructed for about 21 feet west of said road by a bank along the northerly side of Bay View avenue with a fence and a growth of bushes and shrubs on top of said bank; that said bank at the corner of the Old Post Road and Bay View avenue is about 3 or 4 feet high; that on top of said bank along the westerly side of the Old Post Road is a stone wall which meets said picket fence at the corner; that from said corner to the westerly rail of the defendant's track is 15 feet; that between said corner and the defendant's track is a large tree and a small one; that there was a top or hood over the defendant's automobile, which top was up and in place over the machine, and the side curtains of said top were in position, thus obstructing the plaintiff's view on either side while he was sitting upright on the seat. The plaintiff testified that when he was coming down Bay View avenue he looked along the defendant's track to the north at the last point from which he was able to do so, before his view was obstructed by said bank and bushes, and saw no car of the defendant approaching from the north; that he then proceeded down the grade, and did not again look along said track until the front wheels of his automobile were on the track; that, as the hind wheels of his automobile were just passing onto the first or west rail of the track, he was struck by a car of the defendant proceeding from the north.

It was the duty of the plaintiff to look

court may try jury cases? This leads to the consideration of the meaning of the words "from the second Monday." In many wellconsidered opinions the word "from" is construed to include the first-named day.

In Swift v. Tousey, 5 Ind. 196, the court held that, where a computation of time is to be made from any particular act or time, the word "from" means that the day on which the act was done or the day of the date is to be included.

In Evans v. Sander, 8 Port. (Ala.) 497, 33 Am. Dec. 297, it was held that a note for a certain sum, with interest "from 1835," means from the beginning of the year 1835, and not from or after its expiration.

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 finding that his failure thus to look did not contribute to the accident cannot be upheld in view of the other circumstances of the case. There is some testimony tending to support the contention that the defendant's motorman might have stopped his car and prevented the accident after it should have been plain to him, in the exercise of reasonable care, that the plaintiff was about to drive upon the track and place himself in a position of danger; and that the failure of the motorman to do so constituted negligence in the defendant. On the other hand, there is much testimony to the effect that, after the actions of the plaintiff made it apparent that he was about to drive on the track regardless of the danger, there was no opportunity for said motorman to stop his car and prevent the collision; and that in the circumstances of the case the motorman acted with reasonable care and due regard for the plaintiff's safety. We are not unmindful of the fact that, so far as it relates to the liability of the defendant, the justice presiding in the superior court has refused to disapprove of the jury's verdict. In view of the rule in Wilcox v. R. I. Co., 29 R. I. 292, 70 Atl. 913, it is with hesitation that we disturb

Numerous other authorities to the same effect could be cited if necessary.

The majority opinion seems to be based on section 12 of chapter 32 of our statute and upon the case of Ordway Brothers & Co. v. Remington & Perkins, 12 R. I. 319, 34 Am. Rep. 646. The section of the statute referred to is as follows:

"Sec. 12. Whenever time is to be reckoned from any day, date, or act done, or the time when such act is done, shall not be included in of any act done, such day, date, or the day such computation."

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 defendant's exception to the decision upon the motion for a new trial is sustained. The other exceptions of the defendant are overruled, and the case is remitted to the superior court for a new trial.

VINCENT, J. (dissenting). I am obliged to dissent from that portion of the majority opinion which sustains the action of the superior court in continuing and completing the trial of a jury case on the second Monday in July. Our statute provides (Gen. Laws, 1909, c. 275, § 3) that:

"There shall be a vacation of the superior court from the second Monday in July to the third Monday in September in each year."

The question is: Is the second Monday in July to be included in the vacation, or is it a

In the case of Ordway Brothers & Co. v. Remington & Perkins, supra, the court considered the language used in a lease with a view to determining the day when it began to run. The words of the lease were "from the first day of September now next ensuing," and the court in considering this language said, referring to the 1st day of September, that:

"The day is to be included or excluded according to the apparent intention of the parties to the lease; but if the demise is 'from' cate the intention, then unless there is some a given day, and there is nothing else to indiparticular reason for holding otherwise, according to the weight of authority, we think the given day must be excluded."

This case does not seem to me to support the position taken in the majority opinion. The substance of the opinion is that the

given day should be excluded only whenuation, the liability of the operator of such cars there is no apparent intention of the parties otherwise, and there is no particular reason

for holding the other way.

In none of our statutes fixing the sessions of our court is there any provision effecting the division of a week, but, on the contrary, it is evident from such provisions that it was the intention of the General Assembly that courts in this state should begin and end their sessions with the week. With this

plain intent of the General Assembly it seems to me clear that the second Monday in July should be included in the vacation. Further than that, the fact that our courts have for a period of more than nine years recognized the second Monday in July as a part of the vacation of the superior court would be, in the language of the Ordway Case, a "particular reason" for holding that the given day

for loss or damage occurring while a shipment, which it was directed to ship via such express company, was in possession of the express company, was limited to the valuation upon which the express company's rate was based, though its bill of lading contained no limitation of liability based upon an agreed valuation. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*] 3. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

In an action against an initial carrier for loss or damage to a shipment while in the cuscourse of dealings between the parties admitted tody of a connecting carrier, evidence as to the in support of defendant's contention that it was simply an agent of the shipper to transport the goods and deliver them to the connecting carrier, and that it had no further responsibility for them, was not prejudicial to plaintiff, where it was held that defendant was an initial carrier liable for loss occurring while the shipment was in the custody of the connecting car[Ed. Note.-For other cases, see Appeal and In the other portions of the majority opin- Error, Cent. Dig. §§ 1068, 1069, 4153-4157, ion I concur. 4166; Dec. Dig. § 1050.*]

should not be excluded.

(36 R. I. 558) GLENLYON DYE WORKS v. INTERSTATE EXPRESS CO. et al. (No. 4670.)

(Supreme Court of Rhode Island. July 3, 1914.)

1. CARRIERS (§ 180*) - Loss OR INJURY TO GOODS-LIABILITY OF INITIAL CARRIER.

Though the operator of electric express cars fixed no through rate to points beyond its line and rendered no bill for through charges, but charged a flat rate per 100 pounds, irrespective of the character of the goods or their value, which was paid upon weekly bills, whether the charges of an express company, to which it delivered shipments, were prepaid or collected from the consignee, it advancing the express charges when they were prepaid and placing the amount in a separate item in its bills under the head of "Advances," where, by its bills of lading, it undertook to carry shipments to their destination on the line of the express company, it was not a mere agent of the shipper but was the initial carrier, within the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]), and under the express provisions of the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]), it was liable for loss of, or damage to, the goods while in the express company's possession notwithstanding a provision of the bill of lading restricting its liability to loss or damage occurring on its own road. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*] 2. CARRIERS (§ 180*) - Loss OR INJURY TO GOODS LIMITATION OF LIABILITY WHERE VALUE IS NOT DISCLOSED.

Where the operator of electric express cars made no through rate to a point on the line of an express company and had no such rate on file with the Interstate Commerce Commission, but charged for transportation to the point of connection with the express company a flat rate per 100 pounds, plus the charges of the express company, which it advanced, and a shipper had dealt with the express company for years, had actual knowledge of its rates which, as filed with and approved by the Interstate Commerce Commission, specified a rate based upon an agreed valuation unless a higher valuation was disclosed, and a higher rate paid, and knew that there were two rates based upon val

rier.

4. CARRIERS (§ 185*) - LOSS OR INJURY TO GOODS-ACTIONS-EVIDENCE.

In an action against an initial carrier which made no through rate for the loss of a shipment while in the custody of a connecting carrier, whose rates filed with and approved by. the Interstate Commerce Commission specified a rate based upon a stipulated valuation unless a higher valuation was disclosed, evidence as to the course of dealings between plaintiff and defendant, tending to show that defendant's rates were based partly upon the rate of the express company and that plaintiff had a thorough knowledge of the express company's rates with reference to which the parties contracted, was properly admitted.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 835-850; Dec. Dig. § 185.*]

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action by the Glenlyon Dye Works against the Interstate Express Company and others. The trial court rendered a decision for plaintiff for an insufficient amount, and it brings exceptions. Exceptions overruled.

Harold W. Thatcher, Seeber Edwards, and Edwards & Angell, all of Providence, for plaintiff. Joseph C. Sweeney, Nathaniel W. Smith, Frank P. Ayer, and Clifford Whipple, all of Providence, for defendants.

SWEETLAND, J. This is an action on the case originally brought against the Interstate Express Company, as a common carrier, to recover for the value of three shipments of goods lost in transit between Phillipsdale, in the town of East Providence, and the city of New York. During the travel of the case, by agreement of counsel, the Rhode Island Company was made a party defend

ant.

The claim of the plaintiff for loss upon said three shipments amounted to $2,796.72, with interest amounting to $751,62, in all to the sum of $3,548.34. The case was tried before 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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