Blettle v. Rhode Island Co.

BARROW-S, J.

Heard on demurrer to a declaration in an action of case for negligence.

For plaintiff: Joseph T; Withe-row. For defendant: Clifford Whipple and Frederick W. O’Connell.

■ The declaration • alleges the negligent . starting of defendant’s car when the plaintiff, to tbe knowledge of defendant’s agents in charge of said car, was about to alight.

The demurrer is based upon the claim that the declaration fails to show that the defendant was guilty of negligence and that the plaintiff was free therefrom.

The third ground of demurrer avers that the defendant owed no such duty to the plaintiff as is alleged in the declaration.

The declaration is similar, both in statement of liability and statement of duty, to that in Goldstein vs. Rhode Island Company, No. 37783, in which Judge Tanner held that the statement of liability was sufficient to go before the jury. An examination of the papers in the Goldstein case, however, shows that there was no ground of demurrer there taken in relation to this statement of duty, so that this point was not passed upon in the Goldstein case. We agree with the rescript of the Presiding Justice in the Goldstein case on the question of liability and overrule the demurrer on all grounds except the third.

The third ground of demurrer, however, we believe to be well taken. The statement of duty is that of an absolute liability which does not rest on the carrier.

The demurrer is sustained on the third ground and overruled on all other grounds.

See also No. 42341. Joseph Blettle vs. Rhode Island Company. Rescript practically identical with preceding page.