Child v. Greene ( 1931 )

I am constrained to dissent from the majority opinion because I am convinced that the trial justice of the Superior Court was required to direct a verdict for the defendant in accordance with the law as stated in the opinion of this court in the case ofPooler v. Burton, Town Treas., 40 R.I. 249, as applied to the undisputed facts in this case which are as follows. The plaintiff, Mrs. Child, was injured April 6, 1929, while walking on a sidewalk on Main street in the town of Warren. Main street was adopted as part of the State highway system in 1903. The testimony of the engineer is that the State took Main street from occupation line to occupation line, that is, the entire width of the street was taken, the sidewalks as well as the roadbed. The accident to Mrs. Child happened soon after the State Board of Public Roads had made extensive improvements to Main street.

In Pooler v. Burton, supra, the question under consideration was whether the town of Johnston was liable for an accident which had occurred on a State highway outside of the part of the highway which had been improved by the State. The court said: "The intention of the Legislature seems to be clear, that State roads should be directly under the control of the State and that, with the exception of the removal of snow and ice, the responsibility for the proper repair and maintenance of the entire State highway rests upon the State, and not partly upon the State and partly upon the towns and cities, as claimed by the plaintiff", and held that the town was not liable to the plaintiff.

In the instant case the majority opinion states "that except for Chapter 1224, P.L., 1928, (it might) be considered a debatable question whether towns have the duty to repair sidewalks adjoining State roads . . ." It appears to me that this chapter has no application to the facts in this case. It is merely a permissive statute. It imposes no duty upon a town; it simply authorizes the town council of any town to order sidewalks made upon any public highway in the town. Clearly, until a town council has duly ordered a sidewalk constructed there is no liability imposed upon the town. The sidewalk upon which the plaintiff was injured was not ordered constructed by the town council of Warren. It was made long before the passage of said chapter 1224. Quinn v.Stedman, 50 R.I. 153, cited by the majority opinion was an action for damages sustained on a cement sidewalk in a town on a highway which was not a state highway.

For the reasons given I am of the opinion that the ruling of the trial justice should be sustained.