This is an action of trespass on the case for negligence, brought by Adelia Marsh against The Rhode Island Company, begun by writ dated September 12, 1906. The declaration was originally in a single count, which alleged, in substance, that the plaintiff was a passenger on a car belonging to the defendant; that after said car had come to a full stop, at the corner of Dorrance and Weybosset streets, and while she was stepping from the body of said car to the footboard thereon, the car was carelessly *Page 271 and negligently started forward suddenly and without warning and plaintiff was thrown to the ground. Subsequently two additional counts were filed called second and third counts. A demurrer to the "second" count was sustained, and a demurrer to the "third" count was overruled, and the case was tried to the jury on the original or "first" count and on the "third" count. This "third" count alleges substantially that the plaintiff was a passenger on a car of the defendant; that said car was about to come to a stop at or near the corner of Dorrance and Weybosset streets, on a signal given by the conductor; that the plaintiff was getting ready to alight from the car; and that the car was then and there started ahead at great speed, before the plaintiff could alight therefrom, without any sufficient warning to her, and caused her to be thrown to the ground, she being all the while in the exercise of due care upon her part.
The jury returned a verdict for the defendant, and after the denial of plaintiff's motion for a new trial, the plaintiff duly filed a bill of exceptions and prosecuted the same to this court, and the case is now before this court upon the bill of exceptions.
Plaintiff's first exception was to the exclusion of a certain question (p. 102 of transcript), viz.: "Q. 46. (By Mr. Littlefield) Do you know the length of the Pawtuxet cars which have eleven seats, have you measured that?" this question was rightly excluded. It does not appear that the car upon which the plaintiff was riding had been measured by the witness; nearly six years had elapsed since the accident, and it did not appear that all eleven bench cars in use at the time of the trial were of the same length as the car in use at the time of the accident. Furthermore, the plaintiff's council was given an opportunity to get the length of the very car which was actually in use at the time, evidence having shown the number thereof and that the car was in existence, but did not see fit to avail himself of the opportunity. This exception is overruled.
The second exception was to the exclusion by the court from the consideration of the jury of the said "third" count *Page 272 in the declaration. The portion of the charge which excluded this count from the consideration of the jury, and to which exception was taken, is as follows: "Now then, the third count which is really the second count, alleges as a cause of action that she was a passenger, alleges the duty, of course, of a common carrier with regard to passengers, and it charges that while this car was at the corner of Dorrance street and Weybosset street, etc., that the agent and servant of the defendant company, while the plaintiff was getting ready to alight therefrom, that the defendant company, notwithstanding its duty in the premises, so negligently, carelessly, recklessly, managed and controlled this car, that the car was then and there started ahead, with great speed, when the plaintiff was alighting therefrom, without any sufficient warning to the plaintiff then and there, causing the plaintiff to be thrown to the ground. It alleges that as the car was about to come to a stop, it says as it was about to come to a stop, that the car was started ahead recklessly and carelessly. There are two statements of the case, gentlemen.
"Now there is no testimony, gentlemen, in this case, which would warrant a finding for the plaintiff on that last statement of fact, absolutely none of sufficient weight to warrant a finding on that last statement, and I will tell you exactly why I reach that result and charge you as I do. The testimony for the plaintiff consists, in the first instance, of the testimony of her daughter, Miss Marsh, and her testimony is explicit to the point that the car came to a full stop, that a man alighted before her mothers while the car was at a full stop and that her mother started to go out of the end seat, nearest the Narragansett Hotel there, while the car was at a full stop, and while she was attempting to get out the car was standing still. There is the sum total of the testimony, which is explicit. There is not any equivocation with respect to the details from the plaintiff's standpoint, and the testimony of the defendant, the testimony of all the witnesses that pretend to know about the occurrence is this, that this lady stepped off while the car was in motion, *Page 273 so that it brings it right down, as a legal proposition, to that one count, and that is the first count, and then the issue is: Did that car come to a full stop, and did this lady get off or attempt to get off while that car was at a full stop, and was it started, throwing her to the ground? There is the issue, and the only one on which a verdict can be sustained."
Now it is manifest that the plaintiff, in her declaration, attempted to state her case in two different ways; first, that the car came to a full stop, upon signal and that she was stepping to the footboard from the car, while it was at a standstill, when it suddenly, without warning, started and threw her to the ground; and second, that when the car was about to come to a stop on signal given by the conductor, and the plaintiff was getting ready to alight from the car, the car was started ahead at great speed before the plaintiff could alight therefrom, without any sufficient warning to her, and caused her to be thrown, she being in the exercise of due care. We do not think it can be said that there was no evidence to support this second count. While it is true that the plaintiff's daughter testified that the car had come to a full stop and then started while her mother was on the footboard attempting to alight and threw the plaintiff to the ground; and while it is also true that several of the defendant's witnesses testified that the car did not come to a full stop, but was going very slowly or barely moving at the time of the plaintiff's fall, it is manifest that the plaintiff's contention was that her fall was caused by the sudden starting of the car, either from a standstill, or from such slow motion that the plaintiff and her daughter might have been deceived into thinking that the car had come to a full stop. We think the jury could have found that the car had come to a full stop, or that the plaintiff's daughter was mistaken in thinking that it had stopped, being deceived by the slow motion of the car; and that the jury still might have believed that the plaintiff was thrown by the sudden starting of the car when the plaintiff was getting ready to step to the footboard in the endeavor to alight, after the conductor had given one bell to stop the car and *Page 274 had called "Dorrance Street" as the evidence shows that he did. In our opinion it was error for the trial judge to exclude this count from the consideration of the jury, because the jury might well believe that portion of the evidence for the plaintiff which shows that she was in the exercise of due care in getting ready to alight, and was thrown by the sudden starting of the car after the conductor had signalled one bell to stop the car and had called "Dorrance Street," although they might not believe that the car had come to a full stop at the time. This exception is therefore sustained. (See Rathbone v. Union R.R. Co.,13 R.I. 709.)
The third exception is to a portion of the charge to the jury which reads as follows: "If, on the other hand, the car hadn't come to a full stop, she being a woman some sixty-four years of age, . . . whatever chances a man is willing to take is one thing, but a lady, sixty-four years of age, encumbered by her skirts, who attempts to step off a car when it is in motion, is guilty of negligence, negligence which would prevent her from recovering, but that is outside the issue here, because the issue here is as to whether the car was at a full stop. . . . If the car had come to a full stop and she started to get off, the starting of that car while she was in the act of getting off would make the company liable; and if, on the other hand, she saw fit to step off while it was in motion she took her chance and would have to abide by the consequence."
We think this charge was error, in that it was to the effect that under the statements of fact set forth in the charge the defendant was conclusively guilty of contributory negligence. The question of contributory negligence should have been left to the jury, as the evidence upon that point was conflicting, and if the jury had believed the evidence for the plaintiff, they might have found that she was in the exercise of due care.
In the case of Rathbone v. Union R.R. Co., 13 R.I. 709, where the trial court refused to instruct the jury "That if the plaintiff got off the car while in motion, it was negligence on her part, and she cannot recover, it being admitted *Page 275 that she was between fifty and sixty years of age, and that the time was between eleven and twelve o'clock at night," the refusal so to charge was held correct. The court said, p. 711, — "If the presiding justice had granted the fourth request he would have instructed the jury, in substance, that if they found the plaintiff alighted while the car was moving at a rate of speed however small, although they found that the accident resulted in no wise from the motion then subsisting, but solely from the improper increase of the rate of that motion, nevertheless they must find for defendant. We think that such instruction would have been erroneous, and that the question of negligence was rightly left to the jury under the instructions given."
We think the law as laid down in this case was quite applicable to the facts of the case at bar, and that the question of the plaintiff's contributory negligence should have been left to the jury. This exception is sustained.
As the case must be tried again, owing to the error of law above pointed out, it is not necessary to consider the fourth exception, that being to the refusal of the trial court to grant a new trial upon the plaintiff's motion upon the ground that the verdict was against the law and the evidence, c., in the usual form.
The first exception is overruled, the second and third exceptions are sustained, and the case is remitted to the Superior Court for a new trial.