Duffy v. United Electric Railways Co.

8 R.I. Dec. 232

• Court: Superior Court of Rhode Island
• Decided: March 10, 1932
• Docket: No. 88221
• Status: Published

Opinion

BLODGETT, P. J.

Heard upon demurrer of defendant.

The negligence charged in the declaration is that “defendant, its agents and servants, so carelessly and negligently operated its said street railway car that it collided with the motor vehicle operated by the plaintiff as aforesaid.”

For plaintiff: Hinckley, Allen Til-linghast, Phillips & Wheeler. For defendant: Clifford, Whipple & McGee.

The demurrer is based upon a failure by plaintiff to allege in what particular way the defendant was negligent.

Defendant cites an opinion of Mr, Justice Sweeney in Exceptions No. 6886, Rosario Ferra vs. United Electric Rys. Co., in support of demurrer.

In that case a demurrer based upon grounds similar to those of the present case was overruled 'by the trial Court. The Supreme Court held that the demurrer should have been sustained by reason of failure in declaration to specify wherein defendant was negligent, and cites Bennett vs. Connery & Co., Inc., 48 R. I. 350, where the Court said: “if the plaintiff was unable to allege the exact cause of the accident or the precise nature of the negligence, he should allege his lack of knowledge or means of knowledge.”

Following the precedent in this case the demurrer is sustained.

Plaintiff may amend his declaration in accordance herewith.