Page images
PDF
EPUB

and indicate wherein they in our judgment declaring without qualification that the Synare distinguishable from the case at bar. dicate Company was not doing business. In Zonne v. Minneapolis Syndicate Co., 220 this case, as reported, it appears that counsel U. S. 187, 31 Sup. Ct. 361, 55 L. Ed. 428, for the defendant urged that the debates in was heard with the above-mentioned corpo- Congress as well as the affirmative action of ration cases and decided the same day. Mr. that body show that holding companies were Justice Day wrote the opinion in both the entitled to be excluded from the operation Flint and the Zonne Cases. The court says: of the corporation tax law. The court says: of the corporation tax law. The court does "The case presents a peculiarity of corporate not expressly find that holding companies organization and purpose not involved in the are not taxable. But if the decision were to case just decided. The Minneapolis Syndicate, be so interpreted, it clearly would not be as the allegations of the bill, admitted by the demurrer, show, was originally organized for a precedent in the present case inasmuch as and engaged in the business of letting stores and our statute, as already shown, clearly indioffices in a building owned by it, and collect-cates a legislative intent to tax such coming and receiving rents therefor. On the 27th of December, 1906, the corporation demised and panies. The case cited, for these reasons, let all of the tracts, lots, and parcels of land be- is distinguishable from the present one. longing to it, * * * for the term of 130 In McCoach v. Minehill Railway Co., 228 years from January 1, 1907, at an annual rent: U. S. 295, 33 Sup. Ct. 419, 57 L. Ed. 842, the al of $61,000, to be paid by said lessees to said corporation. At that time the corporation caus- facts are substantially these: The Minehill ed its articles of incorporation, which had there- Company was incorporated in 1828 for the tofore been those of a corporation organized for purpose of conducting and operating a railprofit, to be so amended as to read; "The sole purpose of the corporation shall be to hold the road. It built a railroad and operated it for title to the westerly one-half of block 87 of the many years. In 1896 it leased its entire railtown of Minneapolis, now vested in the cor- road and all of its property of every descripporation, subject to a lease thereof for a term tion in use or adapted for use in, upon, or of 130 years from January 1, 1907, and, for the convenience of its stockholders, to receive, and about the railroad, and also "all the rights, to distribute among them, from time to time, powers, franchises (other than the franchise the rentals that accrue under said lease, and the of being a corporation), and privileges which proceeds of any disposition of said land.' * * * The corporation involved in the pres- may now, or at any time hereafter during the ent case, as originally organized and owning time hereby demised, be lawfully exercised and renting an office building, was doing busi- or enjoyed in or about the use, management, ness within the meaning of the statute as we maintenance, renewal, extension, alteration, have construed it. Upon the record now presented we are of opinion that the Minneapolis or improvement of the demised premises Syndicate, after the demise of the property and or any of them" to the Philadelphia & Readreorganization of the corporation, was not en- ing Railway Company, for a term of 999 gaged in doing business within the meaning of It had wholly parted with control and years from January 1, 1897, at a yearly rentmanagement of the property; its sole author- al of $252,612; that being equivalent to 6 ity was to hold the title subject to the lease for per cent. upon the capital stock of the Mine130 years, to receive and distribute the rent-hill Company. Thereupon the railroad and als which might accrue under the terms of the lease, or the proceeds of any sale of the land if it should be sold. The corporation had practically gone out of business in connection with the property and had disqualified itself by the terms of reorganization from any activity in respect to it. We are of opinion that the corporation was not doing business in such wise as to make it subject to the tax imposed by the act

of 1909."

The wholly parting with the control and management of the property and disqualification of itself by the terms of reorganization from any activity in respect to it are stated as the significant facts and reasons for finding that the corporation had practically gone out of business in connection with the property. Such facts do not exist in the case at bar. The traction company has in no particular parted with the control and management of its property, nor has it in any respect disqualified itself from exercising any of its powers or activities relative thereto, or any of its other powers. The Zonne Case does clearly imply that the mere holding of the title to the real estate and receiving and distributing the rentals under the lease are not doing business within the meaning of the corporation tax act, although the court is apparently careful to refrain from

its property were turned over to the Reading Company, which has since operated it, and the Minehill Company has not carried on any business in connection with its operation. The Minehill Company maintains its corporate existence and organization by electing officers annually. It receives said yearly rental and interest on its bank deposits and maintains a contingent fund from which it receives annual sums as interest or dividends. It pays the necessary expenses incident to maintaining its offices and corporate existence including salaries of officers and clerks. It keeps stock books for the transfer of its stock, which is bought and sold upon the market. The annual income from the contingent fund is about $24,000, and the annual payments for state tax about as much, and its expenditures. for corporate maintenance about $5,000. On page 303 of 228 U. S., on page 422 of 33 Sup. Ct. (57 L. Ed. 842), the court says:

"The precise question presented by the present record is whether the Minehill Company is 'doing business' in the sense in which the realty companies concerned in Flint v. Stone Tracy Co., 220 U. S. 107, 170, 31 Sup. Ct. 342 (55 L. Ed. 389, Ann. Cas. 1912B, 1312), were doing business, or had gone out of business in sub

stantially the same sense that the Minneapolis | from its investments, on the authority of the Syndicate had done so. From the facts as stat- Pollock Case, 157 U. S. 429, 15 Sup. Ct. 673, ed above it is entirely clear that the Minehill Company was not, during the years of 1909 and 39 L. Ed. 759 (the Income Tax Case), would 1910, engaged at all in the business of main- in effect be a direct tax upon property imtaining or operating a railroad, which was the posed thereon solely by reason of its ownerprime object of its incorporation. This busi- ship and therefore invalid because not apness, by the lease of 1896, it had turned over to the Reading Company. If that lease had portioned according to population; and, been made without authorization of law, it third, that the collection and distribution of may be that for some purposes, and possibly for rentals and income to stockholders, and the the present purpose, the lessee might be deemed other activities of the Minehill Company as in law the agent of the lessor; or at least the lessor held estopped to deny such agency. But described, were not carrying on business the lease was made by the express authority within the meaning of the Corporation Tax of the state that created the Minehill Com- Act, such activities being incidental to the pany, conferred upon it its franchise, and imposed upon it the correlative public duties. The ownership of property merely. effect of this legislation and of the lease made. thereunder was to constitute the Reading Company the public agent for the operation of the railroad and to prevent the Minehill Company from carrying on business in respect of the maintenance and operation of the railroad so long as the lease shall continue. And it is the Reading Company, and not the Minehill Company, that is doing business' as a railroad company upon the lines covered by the lease and is taxable because of it. The Corporation Tax Law does not contemplate double taxation in respect of the same business. * * * We conclude that the Minehill Company was not taxable with respect to the railroad business."

And the court further says:

"In our opinion the mere receipt of income from the property leased (the property being used in business by the lessee and not by the lessor) and the receipt of interest and dividends from invested funds, bank balances, and the like, and the distribution thereof among the stockholders of the Minehill Company, amount to no more than receiving the ordinary fruits that arise from the ownership of property. The ground of the decision in the Pollock Case was that a tax upon income received from real estate and invested personal property (as distinguished from income received from the transaction of business) was in effect a direct tax upon the property itself, and therefore invalid unless apportioned according to the population." And on page 308 of 228 U. S., on page 424 of 33 Sup. Ct. (57 L. Ed. 842), after discussing the section of the Corporation Tax Act providing for the including of income from nontaxable property in order to ascertain the measure of the tax, the court says:

"The distinction is between (a) the receipt of income from outside property or investments by a company that is otherwise engaged in business, in which event the investment income may be added to the business income in order to arrive at the measure of the tax; and (b) the receipt of income from property or investments by a company that is not engaged in business except the business of owning the property, maintaining the investments, collecting the income, and dividing it among its stockholders. In the former case the tax is payable; in the latter not. And so, upon the whole, we think the court below correctly held that the present case is governed by Zonne v. Minneapolis Syndicate. 220 U. S. 187 [31 Sup. Ct. 361, 55 L. Ed. 428], and that the taxes under consideration were unlawfully imposed."

If we interpret this opinion aright, it amounts (speaking broadly) to this: First, that the Minehill Company was not taxable with respect to the railroad business for which it was incorporated, inasmuch as it had transacted no such business; second, that a tax upon its income of $24,000, arising

The principal point in this decision is based on the fact that the Minehill Company was not transacting the business for which it was incorporated, although that it was doing business is not denied, but expressly conceded. As to this point the decision does not apply to the case at bar, as the traction company is doing what it was incorporated to do. Neither is the distinction between a tax on business and property of importance here, as the tax under the state Tax Act is expressly a tax on property. If the reference to the collection and distribution of income arising from investments and from the rental of the Minehill property, etc., as not constituting carrying on business under the act, contains the implication that the Minehill Company had become in effect a holding company and as such not taxable, what we have already said as to the scope of our own act in this particular distinguishes the case at bar from the Minehill Case. But in view of the decision as to the realty companies in the Flint Case it is at least questionable if such implication was intended in the Minehill Case. The Supreme Court up to the present time has apparently carefully refrained from declaring a holding company not taxable.

Three of the court dissented in the Minehill Case on the ground that it was carrying on business and Mr. Justice Day wrote the dissenting opinion. We make extracts therefrom because they are suggestive and pertinent in some particulars in giving interpretation to our own tax act and are in general harmony with the views we have already expressed. Among other things, he says:

"The amount of business done is utterly immaterial. The doing of any business with the advantages which inhere in corporate organization brings the corporation within the terms of the act. Such was the ruling in the Flint Case after full consideration by this court of the terms and scope of the law. It is said, however, that this case is controlled by the ruling in the Zonne Case. *** It seems to me that the present case is quite unlike that one. *** In the present case the corporation has not disqualified itself from business activity. It maintains a considerable force in active emfrom the railroad lease, so deposits and invests ployment and, entirely apart from the receipts its funds as to create, in these days of low interest upon good investments, an annual income of over $24,000, as appears by its return. The amount derived from investments depends upon the exercise of judgment and the efficiency of management. If business includes every

*

thing that occupies the time, attention, and la- |
bor of men for profit, it seems to me that these
facts show that the Minehill Company is carry
ing on business in the present instance. *
I think the present case is much nearer the rul-
ing made by this court in the Corporation Tax
Cases in the matter of the realty companies
therein involved. Take, for instance, the Park
Realty Company. That corporation was organ-
ized to work, develop, sell, and convey real es-
tate; to lease, exchange, hire, or otherwise ac-
quire property; to erect, alter, or improve
buildings; to conduct, operate, manage, or
lease hotels, etc. It appeared that at the time
of the imposition of the tax the sole business
or property owned by the realty company was
the Hotel Leonori. It was leased for 21 years
at an annual rental of $55,000. The corpora-
tion was engaged in no business, except the
management and lease of that hotel property,
and was in receipt of no other income than that
derived from its rental, and has no assets other
than that property and the income thereof. It
was held to be doing business within the mean-
ing of the act."

carrying on business for profit within this state in 1912 within the meaning of the Tax Act of 1912; that it was liable to taxation under the provisions of sections 9 to 20 of said act; and that the petitioner as a holder of the shares of the capital stock of said traction company was exempt from taxation in this state thereon.

The exception of the petitioner is sustained; the decision of the court below is reversed, and the case is remitted to the superior court, with direction to enter judgment for the petitioner for $148.05 with interest thereon from October 18, 1912..

(37 R. I. 189)

RIBAS v. REVERE RUBBER CO. (No. 4682.)

(Supreme Court of Rhode Island. July 10, 1914.)

State v. Anniston Rolling Mills, 125 Ala. 1. EVIDENCE (§ 351*) -DOCUMENTARY EVI

121, 27 South. 921, is similar to the Minehill Case. The action was to recover a license tax imposed for doing business as a corporation. The rolling mill corporation, after orThe rolling mill corporation, after organizing for the purpose of manufacturing and dealing in iron and iron products, leased its plant to another corporation, and its only corporate acts during the year in question were the collection of rents, the payment of taxes, the rent of some of its money, and collecting interest thereon, the doing all such other things as are incident to the preservation of its property and the holding of its directors' meetings. The test under the law was whether the corporation exercised any of the functions, powers, or franchises which it was intended to perform, or was engaged in the transaction of the business or any part thereof which it was organized to transact. It was held that it had not done so, and that it was not taxable. This case is also readily distinguishable from the case at bar on grounds already indicated.

In People v. Horn Silver Mining Co., 105 N. Y. 76, 11 N. E. 155, the acts and activities of the defendant company were held to constitute "doing business." Peterson v. Chicago, R. I. & P. R. Co., 205 U. S. 364, 27 Sup. Ct. 513, 51 L. Ed. 841; People v. American Bell Telephone Co., 117 N. Y. 241, 22 N. E. 1057; Mannington v. Hocking Valley R. R. Co. (C. C.) 183 Fed. 133; Chicago Title & Trust Co. v. Bashford, 120 Wis. 281, 97 N. W. 940; and Toledo Traction, Light & Power Co. v. Smith (D. C.) 205 Fed. 643-are authorities for the doctrine that the holding by a corporation of a controlling portion or all of the capital stock of a local corporation and the exercise of the rights of a stockholder, such as voting on the stock and assenting to the adoption of regulations, do not constitute doing business within the state of the local corporation. They need no further comment.

We are of the opinion therefore that the United Traction & Electric Company was

DENCE-ADMISSIBILITY.

To render a record admissible as evidence, there need not be any law or ordinance requiring it to be kept, but it is sufficient if such record be kept by some person in the regular course of his occupation or business.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1388-1397; Dec. Dig. § 351.*] 2. EVIDENCE (§ 373*) — DOCUMENTARY EVIDENCE-HOSPITAL RECORD.

[ocr errors]

to show that a hospital record was required to In a personal injury action, evidence held be kept by an interne, rendering it admissible as evidence.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1581-1586, 1590, 1592, 1593, 1610, 1611; Dec. Dig. § 373.*]

3. EVIDENCE (§ 351*) - DOCUMENTARY EVIDENCE-DELAY IN MAKING ENTRIES.

For a record to be admissible as evidence, the entries must be made contemporaneously with the facts to which they relate.

[Ed. Note.-For other cases, see Evidence, dence, Cent. Dig. §§ 1388-1397; Dec. Dig. 8 351.*]

4. EVIDENCE (§ 351*) - DOCUMENTARY EVIDENCE-DELAY IN MAKING ENTRIES "CONTEMPORANEOUS.

[ocr errors]

That a hospital record was only made up every three days, as was the regular method, did not render it inadmissible because not contemporaneous, since "contemporaneous" does not mean that the record must be made at the moment of the occurrence, but only within such time as would reasonably make it a part of the

transaction.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1388-1397; Dec. Dig. § 351.* For other definitions, see Words and Phrases, vol. 2, p. 1489.]

5. EVIDENCE (§ 351*) -DOCUMENTARY EVIDENCE-ENTRIES MADE FROM INFORMATION.

A hospital record of the progress of a patient, made by an interne in the regular course of business, was not rendered inadmissible because some of the facts recorded were not of his own personal knowledge but were reported to him by nurses and other doctors. Cent. Dig. §§ 1388-1397; Dec. Dig. § 351.*] [Ed. Note.-For other cases, see Evidence, 6. EVIDENCE (§ 351*) -DOCUMENTARY EVIDENCE-ENTRIES MADE FROM INFORMATION. A hospital record kept by an interne, based partly upon his own knowledge and partly on

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

reports from others, was not inadmissible because the witnesses who made the reports testified at the trial, since such record tended to corroborate the testimony of the witnesses.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1388-1397; Dec. Dig. § 351.*] 7. EVIDENCE (§ 351*) -DOCUMENTARY EVIDENCE-HOSPITAL RECORD-ADMISSIBILITY. A hospital record of the condition and progress of a patient, kept by an interne in the regular course of business, was admissible as evidence of the facts recorded.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1388-1397; Dec. Dig. § 351.*]

8. TRIAL (§ 234*)-INSTRUCTIONS — MISLEADING INSTRUCTIONS.

Where, in a personal injury action, defendant claimed that plaintiff's injury was aggravated by his disobedience of instructions of the surgeons at the hospital, and the surgeons testified that in their opinion the injury was aggravated thereby, it was error to charge that the jury must first find "as an affirmative fact" that the injury was so aggravated, since the establishment of such fact could not be by positive proof, but only by opinion evidence.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 534-538, 566; Dec. Dig. § 234.*] 9. HIGHWAYS (§ 176*)-LAW OF ROAD-OVERTAKING AND PASSING-CARE REQUIRED. Under Gen. Laws 1909, c. 87, § 1, requiring a carriage or other vehicle overtaking any other carriage or vehicle on any highway to pass on the left side thereof and the person overtaken to drive to the right, a person in the rear passing a vehicle in front is only required to exercise such care as conditions and circumstances demand.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 465; Dec. Dig. § 176.*]

10. TRIAL (§ 240*) - INSTRUCTION-ARGUMENTATIVE INSTRUCTION.

In an action for an injury to plaintiff, caused by being run down by defendant's auto truck, driven by his chauffeur, the court properly refused defendant's request to charge that in arriving at a verdict the jury should act as though the case had been brought against the chauffeur,

etc.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 561; Dec. Dig. § 240.*]

11. HIGHWAYS (§ 175*) - USE OF HIGHWAY AND LAW OF THE ROAD-CARE REQUIRED.

Where plaintiff was riding a bicycle east on the south side of a highway and was in the exercise of ordinary care, and the driver of defendant's auto truck going west suddenly drove to the left to pass a team in front, and met and to the left to pass a team in front, and met and ran over plaintiff, who in the exercise of ordinary care could not get out of the way, defendant was liable.

[Ed. Note. For other cases, see Highways, Cent. Dig. §§ 461-464; Dec. Dig. § 175.*] Johnson, C. J., and Sweetland, J., dissenting.

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

Action by Ramon Ribas against the Revere Rubber Company. Judgment for plaintiff, and defendant appeals. Reversed and remit

ted for new trial.

Washington R. Prescott and Edward H. Ziegler, both of Providence, for plaintiff. Gardner, Pirce & Thornley, of Providence (James A. Pirce and Charles R. Haslam, both of Providence, of counsel), for defendant.

VINCENT, J. This is an action of trespass on the case for negligence, and is now before this court upon the defendant's bill of exceptions. The case was tried in the superior court to a jury, and a verdict was rendered for the plaintiff in the sum of $5,000. Thereafter the defendant filed its motion for a new trial which motion was denied, whereupon it filed its bill of exceptions, embracing the following 21 assignments of error:

"(1) To a certain ruling of said justice at said trial admitting certain evidence objected to by the defendant, as shown on page 238 of the transcript of testimony, etc., filed herewith.

"(2) To a certain ruling of said justice at said trial admitting certain evidence objected to by the defendant, as shown on page 274 of the transcript of testimony, etc., filed herewith.

"(3) To a certain ruling of said justice at said trial, excluding certain evidence offered by the defendant, as shown on page 377 of the transcript of testimony, etc., filed herewith. "(4) To a certain ruling of said justice at to by the defendant, as shown on pages 451 and said trial, admitting certain evidence objected 452 of the transcript of testimony, etc., filed herewith.

"(5) To a certain ruling of said justice at said trial, admitting certain evidence objected to by the defendant, as shown on page 456 of the transcript of the testimony, etc., filed herewith.

"(6) To a certain ruling of said justice at said trial, admitting certain evidence objected to by the defendant as shown on page 494 of the transcript of testimony, etc., filed herewith.

"(7) To a certain ruling of said justice at said trial, refusing to give to the jury defendant's request to charge No. 1, the exception appearing on page 516, and the said request to charge on page 525 of the transcript of testimony, etc., filed herewith.

"(8) To a certain ruling of said justice at said trial refusing to give to the jury defendant's request to charge No. 2, the exception appearing on page 516, and the said request to charge on page 525 on the transcript of testimony, etc., filed herewith.

"(9) To a certain ruling of said justice at said trial, refusing to give to the jury defendant's request to charge No. 3, the exception apcharge on pages 525 and 526 of the transcript pearing on page 516, and the said request to of testimony, etc., filed herewith. said trial, refusing to give to the jury defend"(10) To a certain ruling of said justice at ant's request to charge No. 4, the exception appearing on page 516, and the said request to charge on page 526 of the transcript of testimony, etc., filed herewith.

"(11) To a certain ruling of said justice at said trial refusing to give to the jury defendant's request to charge No. 5, the exception appearing on page 516, and the said request to charge on page 526 of the transcript of testimony, etc., filed herewith.

"(12) To the giving of a certain portion of the charge to the jury by said justice at said trial, which part and the exception thereto are set forth on page 520 of the transcript of testimony, etc., filed herewith, lines 7 to 11, inclusive, said part also appearing in the charge by said justice on page 519 of the transcript of

testimony, etc., filed herewith.

"(13) To the giving of a certain portion of the charge to the jury by said justice at said trial, which part and the exception thereto are set forth on page 520 of the transcript of testimony, etc., filed herewith, lines 12-15, inclusive, said part also appearing in the charge by said justice on pages 508 and 509 of the transcript of testimony, etc., filed herewith.

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

"(14) To the reading to the jury by said justice at aid trial during his charge to said jury of certain portions of the decision of the Supreme Court of the state of Rhode Island in the case of Angell v. Lewis, the exception thereto being set forth on page 520 of the transcript of testimony, etc., filed herewith, lines 24-26, inclusive, said portions appearing on pages 508 and 509 of the transcript of testimony, etc., filed herewith.

"(15) To the giving of certain instructions to the jury by said justice at said trial at the request of the plaintiff, namely, the plaintiff's second request to charge as modified by said justice, the exception thereto appearing on page 520, said plaintiff's request to charge No. 2 on page 522, and said plaintiff's request to charge No. 2 as modified by said justice and given to the jury on page 517 of the transcript of ⚫ testimony, etc., filed herewith.

"(16) To the giving of certain instructions to the jury by said justice at said trial at the request of the plaintiff, namely, the plaintiff's third request to charge, the exception thereto appearing on page 520, said plaintiff's request to charge No. 3 on page 522, and said plaintiff's request to charge No. 3, as given to the jury by said justice on page 517 of the transcript of testimony, etc., filed herewith.

"(17) To the giving of certain instructions to the jury by said justice at said trial at the request of the plaintiff, namely, the plaintiff's fifth request to charge as modified by said justice, the exception thereto appearing on page 520, said plaintiff's request to charge No. 5 on page 523 and said plaintiff's request to charge No. 5 as modified by said justice and given to the jury on page 518 of the transcript of testimony, etc., filed herewith.

"(18) To the giving of a certain portion of the charge to the jury by said justice at said trial, which part and the exception thereto are set forth on page 521 of the transcript of testimony, etc., filed herewith, line 3, said part also in the charge of said justice, being paragraph 'First' at line 8 on page 515 of the transcript of testimony, etc., filed herewith. "(19) To the giving of a certain portion of the charge to the jury by said justice at said trial, which part and the exception thereto are set forth on page 521 of the transcript of testimony, etc., filed herewith, line 3, said part also in the charge of said justice, being paragraph Third' at line 21 on pages 515 and 516 of the transcript of testimony, etc., filed here"(20) To the giving of a certain portion of the charge to the jury of said justice at said trial, which part and the exception thereto are set forth on page 521 of the transcript of testimony, etc., filed herewith, lines 4 to 8, inclusive, said portion also appearing in the charge of the said justice on pages 514 and 515 of said transcript of testimony, etc., filed herewith.

with.

"(21) To the decision of said justice denying defendant's motion for a new trial, which motion was based upon the following grounds."

The several questions which the defendant argues under its bill of exceptions are more particularly set forth in its brief as follows: (1) That the hospital record, showing clearly the misconduct of the plaintiff at the hospital, which, to some extent precluded a satisfactory recovery from his injuries, should have been admitted in evidence.

(2) That the trial justice charged the jury improperly as to the plaintiff's misconduct at the hospital.

(3) That the trial justice instructed the jury improperly as to the law of the road as applied to the facts of this case:

"A. It was error for the court to charge .that the statutory rule of the road in case of one vehicle overtaking another does not affect

the rights and duties toward vehicles approaching from the opposite direction.

"B. It was error for the court to charge that, if the defendant was at the time of the accident traveling on the left of the road, he assumed the risk of so doing, and was required to use greater care than if he had been traveling on the right side.

"C. It was error for the trial justice to charge that, if at the time of the accident the defendant was on the left of the road, he would. be liable for all injury flowing exclusively therefrom.

"D. It was error for the court to include in its charge the quotations from the opinion in the case of Angell v. Lewis, 20 R. I. 391 [39 Atl. 521, 78 Am. St. Rep. 881].

"E. It was error for the trial justice to refuse to grant the defendant's first, second, third, and fourth requests to charge.

"F. It was error for the trial justice to grant the plaintiff's fifth request to charge." (4) The trial justice erred in denying the defendant's motion for a new trial. And (5) the damages were excessive.

The plaintiff's declaration consists of one count. He alleges that on June 14, 1912, he was riding a bicycle easterly along Point street in the city of Providence when an auto truck near the boundary of Point Street Bridge, traveling westerly, was driven so carelessly by the defendant's chauffeur that it ran into him, throwing him to the ground. as a result of which he sustained a fracture of the left leg between the hip and the knee. It appears from the evidence that about 6 o'clock, on the afternoon of ne 14, 1912, the defendant's auto truck, used for carrying merchandise, was being driven in a westerly direction over the Point Street Bridge, and was being operated by one Alexander J. Lodge, one of the defendant's employés. Another employé of the defendant, Arthur Berry, was upon the truck with Lodge at the time. In proceeding across the bridge the truck traveled at a low rate of speed along the northerly side thereof, and behind a twohorse wagon, the horses being driven at a walk. When the wagon in front reached a point near the west end of the bridge, having already passed the gates at the west end of the draw and also the joist set in the middle of the bridge to separate the driveways, Lodge sounded his horn, shifted his speed from first to second, and started to pass on the left of the wagon in front of him. While thus attempting to pass the team in front, a

collision took place between the truck and the plaintiff, who was riding a bicycle in an opposite direction. The collision resulted in throwing the plaintiff to the ground and inflicting upon him injuries for which he now seeks to recover damages. At the westerly end of the bridge, where the asphalt pavement and the granite block pavement meet, the roadway for. vehicles is 24' 10" in width, and this width continues across the bridge to the east. In a westerly direction from the bridge, the roadway widens gradually on the north side until it reaches a width of 32' 4". It then commences to widen on the south side, and finally reaches a width of 40' that being the full width of Point street.

« ՆախորդըՇարունակել »