and therefore the direction of a verdict | absolved from all liability under the lease. should apply to both David and Louis Ru- In support of such argument they quote in bin. This contention was viewed favorably their brief from the language of the assent by the trial court, and a verdict was accord- as follows: ingly directed in favor of both. [1] The law seems to be well settled that the assignment of a lease, the assent thereto by the lessor, and the acceptance of rent from the assignee by the landlord does not operate as a discharge of the lessee from his covenant to pay rent. Adams v. Burke, 21 R. I. 126, 42 Atl. 515; Almy v. Greene, 13 R. I. 350; 1 Taylor's Landlord & Tenant (9th Ed.) § 371. The defendants admit that a mere assignment of a lease and an acceptance of rent by the lessor from the assignee does not prevent the lessor from maintaining an action of covenant against the lessee for the payment of rent, but they contend that in the case at bar there was a substitution of a new partnership, and that, by the express terms of the written assent of the plaintiff to the assignment, the old partnership was absolved from all liability under the lease and the new partnership was accepted as the sole tenant thereunder. It would, of course, be competent for a lessor to accept the substitution of one party for another and to release the original lessee from further liability under his covenant to pay rent, but in order to effect such a release the intent of the lessor to do so must clearly appear, elther from the written assent itself or from the written assent aided by some subsequent acts of the lessor tending to show its accepted interpretation and meaning. As the law is stated in 1 Taylor's Landlord & Tenant (9th Ed.) § 371, the liability of a lessee, on his covenant to pay rent, is not impaired or affected by his act of assigning over the lease, but remains valid against him until the end of the lease; the covenant, in the event of a tenant's alienation affords the landlord a double claim for the payment of his rent; the assignee being chargeable in consequence of his privity of estate and the original lessee still continuing bound in re spect to his contract. [2] In the present case the plaintiff, the lessor, consented to the assignment of the lease; accepted the said Abraham and Louis Rubin as tenants under the terms of the lease, and for a considerable period received from them the stipulated rent. These acts on the part of the lessor, under the authorities, would not be sufficient to bring about a substitution of one lessee for another and effect the discharge of the former lessee from liability under his covenant to pay rent, unless the written assent contained some language indicating such purpose on the part of the lessor. [3] The defendants argue that there was a substitution of a new partnership for the old one, and that by the express terms of the as 66 Does hereby assent to the assignment of the lease aforesaid to Abraham Rubin and Louis Rubin and hereby agrees to accept them as tenants in the said premises under the terms of the within lease." We are unable to find anything in this language warranting the construction contended for by the defendants. Upon this point the defendants cite Brayton v. Boomer, 131 Iowa, 28, 107 N. W. 1099; Golding v. Brennan, 183 Mass. 286, 67 N. E. 239; White v. Berry, 24 R. I. 74, 52 Atl. 682. In Brayton v. Boomer, supra, the question was whether or not it was error for the trial court to instruct the jury that: "If you find from the evidence that defendant * sold out did lease the premises, and his business to Clark and delivered possession of the building to him with agreement that he (Clark) was to pay the rent thereafter, and said arrangement was made known to plaintiff, who made no objections thereto, and that he (plaintiff) tacitly consented thereto, then defendant became relieved from liability for rent accruing after that time." The question in that case materially differs from the question raised in the case at bar. If the plaintiff accepted or assented to the assignment to Clark, including an agreement that the rent was thereafter to be paid by Clark, it would be open to the jury to find, upon the evidence, that the defendant was absolved from further liability, but we do not find that situation here. In Golding v. Brennan, supra, the question was whether or not the plaintiffs accepted and agreed to the substitution of the corporation as a tenant and party to the contract in place of the defendant firm. In the case at bar the defendants ask us to find that the old partnership was absolved from liability to pay further rent by the express terms of the plaintiff's written assent to the transfer of the lease, which we are unable to do. In White v. Berry, supra, the defendant removed from the premises before the expiration of his term, notified the plaintiff of such removal, and delivered up the keys without any protest or objection on the part of the plaintiff. Later the plaintiff advertised the property for rent, put up "to let" signs, and showed the house to prospective tenants, all without consulting the defendant or making any claim upon him for further rent, treating the matter in the same way he would have done had the defendant never lived there; and the court held that the plaintiff's acts were tantamount in law to an express agreement on his part to accept the premises which the defendant had abandoned. It is difficult to find any similarity between that case and the one before us. We do not find any agreement or any acts tantamount thereto on the part of the plain the defendants from the payment of rent ac- tion that her wagon struck a large rock in a cruing between the date of the assignment rut, and there was nothing to show that the fact and the time when the plaintiff took posses-tributed to the injury, instructions that, if that she was dressed in feminine apparel consion of the premises. That being so, the plaintiff assumed unusual risks on account of her right of the plaintiff to recover the amount manner of dress and the nature of the vehicle of rent sued for is well settled by the auin which she was driving, she could not recover, thorities already cited. The plaintiff's exception is sustained, and the defendants may appear before this court on the 9th day of April if they see fit and show cause, if any they have, why this case should not be remitted to the superior court, with direction to enter judgment for the plaintiff in the sum of $725 and costs. were erroneous. Cent. Dig. 88 538-540.] 6. APPEAL AND ERROR QUESTIONS PRESENTED. 843(2)—REVIEW— Where a judgment below is reversed on other exceptions, the appellate court will not review the sufficiency of the evidence; for the weight of the evidence will become a question for the succeeding jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3331.] Exceptions from Superior Court, Washington County; George T. Brown, Judge. Action by Nora E. Whitford against Rowland B. Palmer, Town Treasurer. There was a verdict for defendant, and, plaintiff's motion for new trial being denied, she except ed. Exceptions sustained. See, also, 38 R. I. 53, 94 Atl. 495. Frederick C. Olney, of Wakefield, and J. Jerome Hahn, of Providence, for plaintiff. Nathan B. Lewis, of West Kingston, and Till 2. HIGHWAYS 210(4) INJURIES-ACTIONS inghast & Collins, of Providence, for defend -EVIDENCE-ADMISSIBILITY. In an action against a town for damages for injuries sustained by a defect in a road, evidence of injuries to the wagon of another caused by defects in a different place is inadmissible. [Ed. Note. For other cases, see Highways, Cent. Dig. § 530.] 3. APPEAL AND ERROR BILL OF SUFFICIENCY. 761-EXCEPTIONS, An exception to the granting of a request to charge cannot be considered, where the argument in the brief was founded on the language used in the charge subsequent to the reading of the request, and it was not referred to by counsel at the time of taking the exception, nor mentioned in the bill of exceptions. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3096.] 4. HIGHWAYS 214 - INJURIES-ACTIONSINSTRUCTIONS. ant. PARKHURST, C. J. This was an action of trespass on the case, brought under the statute relating to suits against towns for bodily injuries suffered by reason of defect or want of repair upon highways (chapter 46, Gen. Laws 1909, §§ 15-18). The suit was brought against the town treasurer of the town of Exeter to recover for bodily injuries alleged to have been suffered by the plaintiff by reason of the negligence of the town of Exeter in failing to keep in repair and in a condition safe and convenient for travelers a portion of a certain highway in said town known as the "ten-rod road," said portion of said highway being a few rods east of the house occupied by the plaintiff and her husband. The case was tried before a justice of the superior court sitting in Washington county with a jury, September 28-October 1, 1915, and resulted in a verdict for the defendant. After the denied of a motion for new trial on behalf of plaintiff, filed and heard in due course, the plaintiff seasonably prosecuted a bill of exceptions to this court, and the case is now before this court upon said bill of exceptions. It appeared in evidence that the plaintiff was a woman of 51 years of age, who had been for many years in the habit of both riding and driving horses over the road in question and elsewhere, and who was experienced ACTIONS-in driving horses attached to vehicles of various kinds; that on the day the injuries are In an action against a town by plaintiff, a alleged to have been suffered by her she was woman, who was thrown from the wagon in which she was riding, where it was her conten- driving a pair of mules hitched to a four Plaintiff claimed that she was thrown from the wagon in which she was riding when the rear wheels struck a stone in a rut, which caused a bump, and the noise of which frightened her team. The court charged that, if plaintiff when approaching the rock saw friends at her home and in her desire to hasten and meet them struck her team, and the exertion in reaching to do so, and the suddenly increased speed, the vehicle at the same time coming in contact with the stone giving it a jolt, threw plaintiff from her seat to the ground, then verdict should be for defendant. Held that, though there was evidence as to the facts set forth in the request, the instruction was erroneous, tending to mislead the jury; for it might well have been understood as a positive direction to find for defend ant. [Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 538-540.] 5. HIGHWAYS 214- INJURIES INSTRUCTIONS. and stones, and that he had prior to the injury made numerous complaints as to its condition to certain individual residents of the town, to the highway surveyor, George E. Tefft, to the town council when in session, and to certain members of the town council when the council was not in session, the apparent purpose of which testimony was to show, under the provisions of Gen. Laws 1909, c. 46, § 15, that the town, prior to plaintiff's injury, "had reasonable notice of the defect, or might have had notice thereof by the exercise of proper care and diligence on its part." The witness again testified that he talked about this road, "talking to Charlie Sweet, one of the town councilmen we were talking to"; and thereupon objection was made by defendant's attorney to the effect that complaint must be made or notice given to the town council as a body, and that notice to a town councilman individually was not notice to the town. Plaintiff's attorney in effect insisted that such notice to a town councilman was notice to the town, but the justice ruled otherwise, and plaintiff's exception was noted. wheel tip cart of a type in common use in the | and in a very rough condition with deep ruts country; that the seat in use on this cart was a mowing machine seat of iron or steel supported by a somewhat flexible piece of steel which was attached beneath the seat and extended downward to the middle tongue of the cart and was there securely fastened. There was some spring to this support of the seat, and the driver sitting in this seat could obtain support for the feet upon the middle tongue, which was about a foot wide or upon the forward axle. The plaintiff in substance testified that as she was driving the mules at a walk in a westerly direction towards her house, which was a short distance away, she saw a stone in the right-hand rut of the road projecting upwards several inches from the ground; that she tried to avoid this stone by pulling the mules slightly to the left; that the forward wheels of the cart passed by the stone, but that, on account of the depth of the ruts, the hind wheels did not leave the ruts; that the off hind wheel struck the stone and made a grinding noise; that this noise started the mules, they jumped, and got away, and she was thrown forward and to the left and fell to the ground between the nigh mule and the forward wheel; that both wheels went over her body and she was thereby severely injured. There was much evidence in the case which was very conflicting as to the condition of the road at and near the place of the accident, plaintiff and her husband and witnesses on her behalf testifying that the road was very rough, deeply rutted, and with many projecting stones, making it unsafe and inconvenient for travelers, and that it had been in such condition without repair for a long time prior to the injury; while, on the other hand, defendant's witnesses testified that that portion of the road was in as good and safe condition as the ordinary country roads We find no error in this ruling. This court in the case of Jordan v. Peckham, 19 R. I. 28, 31 Atl. 305, expressly held that notice to a member of the town council of a town of a defect in a highway is not actual and express notice of the defect to the town. See, also, Seamons v. Fitts, 21 R. I. 236, 240, 42 Atl. 863, et seq. Exception 1 is overruled. [2] Exception 2 was also to a certain exclusion of evidence offered on pages 153-155 of the transcript, with reference to an injury to a wagon belonging to the witness Boss on another portion of the same road, about 200 yards distant from the scene of the plaintiff's injury. This evidence was rightly excluded, and Exception 2 is overruled. Exceptions 3-5 inclusive are not pressed. Exception 6, as stated in the bill, was to that portion of the charge in which the justice "referred to the plaintiff as sitting perched' on the seat and her feet dangling, exception thereto appearing on page 362 of said transcript," etc. We find that the portion of the charge referred to in this exception, taken with the context, as the situation was explained and left to the jury, did not constitute reversible error. This exception is in the town. There was also evidence from [1] Plaintiff's first exception is based upon the exclusion by the trial justice of certain testimony as shown on page 129 of the transcript. The witness under examination on behalf of the plaintiff was Amoe E. Whitford, the husband of the plaintiff. He had previously testified to the bad condition of the highway at and near the scene of the injury, that it had for a long time been out of repair [3] Exception 7 was taken to the granting of the defendant's fifth request to charge the jury. We find no error therein, and this exception is overruled. Certain language used in the charge subsequent to the reading of this request, upon which argument in the brief upon this exception is founded, was not referred to by counsel at the time of taking the exception nor is it mentioned in the bill of exceptions. It is therefore not before us. Exceptions 8, 9, and 10 were taken to the granting of the defendant's requests Nos. 6, 7, and 8. We find no reversible error there in, and these exceptions are overruled. Exception 11 is not pressed. [4] Exception 12 was taken to the granting of the defendant's request No. 12, which reads as follows: "(12) That if the jury find that the plaintiff saw friends at her home when approaching the rock in question, and in her desire to hasten and meet them she struck the mules, and the exertion in reaching to hit the mules and their suddenly increased speed, the cart at the same time coming in contact with the stone in question, and thereby giving it a jolt, which threw the plaintiff from her seat to the ground, then under the evidence of this case the jury will find for the defendant." We think this instruction was misleading and tended to confuse the jury as to their duty under the evidence. There was evidence before the jury as to certain facts, set forth in this request, which it was proper for the jury to consider in relation to the question of contributory negligence; but this instruction in this form was such that the jury might well have understood it as a positive instruction to find for the defendant. We think this instruction went too far, and was erroneous and misleading, and that the jury should only have been instructed that they were entitled to consider and weigh all these several circumstances in coming to their conclusion upon the question whether the plaintiff was in the exercise of due care just prior to the injury. This exception is sustained. Exception 13 is overruled. [5] Exceptions 14 and 15 were taken to the granting of the defendant's requests Nos. 14 and 15, which read as follows: of the evidence. As we have already said, we do not in this proceeding attempt to discuss or determine these questions, for the reason that a new trial must be granted for errors of law in the charge to the jury, and at such new trial the weight of evidence will then become a question before another jury. Plaintiff's exceptions Nos. 12, 14, and 15 are sustained. All of the other exceptions are overruled. The case is remitted to the superior court to be holden in Washington county for a new trial. 1. MASTER AND SERVANT ~301(1)—LIABILITY FOR THIRD PERSON'S INJURY-SCOPE OF EMPLOYMENT-AUTOMOBILE ACCIDENT. Where, when accident occurred, chauffeur was returning from his father's home where he had driven automobile at owner's suggestion to obtain consent to drive it for owner, he was then acting as owner's servant, and not on an independent personal mission which would defeat plaintiff's action against owner. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210, 1216.] 2. MUNICIPAL CORPORATIONS 706(7)-CONTRIBUTORY NEGLIGENCE-AUTOMOBILE ACCIDENT QUESTION FOR JURY. Where plaintiff before crossing street looked both ways and was unaware of defendant's automobile until it struck her as she was putting down her umbrella preparatory to boarding a street car at the proper place, she was not contributorily negligent as a matter of law, and such question was for the jury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518.] Exceptions from Superior Court, Provi "(14) That the jury will consider whether the plaintiff was not guilty of negligence in attempt-dence and Bristol Counties; Chester W. Baring to sit upon such a seat as the one in question dressed as she was when driving over a road which was in the condition in which she knew this one to be. "(15) If the plaintiff assumes unusual and uncommon risks when driving over the roads of a town, on account of her manner of dress and the nature of the vehicle in which she is driving, and the accident is caused in part by such risks so assumed, the plaintiff cannot recover." rows, Judge. Action by Eva Elliott against Frances J. O'Rourke Judgment for plaintiff, and defendant excepts. Exceptions overruled, and case remitted, with directions to enter judgment for plaintiff. Edward H. Ziegler, of Providence, for plaintiff. Cushing, Carroll & McCartin, of Providence, for defendant. There was nothing in the evidence to warrant the reference in these instructions to the plaintiff's dress as an element to be conVINCENT, J. This is an action of tressidered in relation to plaintiff's due care. pass on the case for negligence brought to It simply appears that, being a woman, the recover damages for personal injuries alleged plaintiff was dressed in woman's clothes. It to have been sustained by the plaintiff by benowhere appears that such clothes as she ing struck by the defendant's automobile. wore hampered her movements in any way The accident happened on Broad street in or in any degree contributed to her fall from the city of Providence. The plaintiff was the cart. These instructions were therefore standing in the street waiting for an aperroneous, as tending to introduce immate-proaching car. She had come from the eastrial matter which might mislead the jury. erly side of Broad street and was about to Exceptions 14 and 15 are sustained. Exception 16 is overruled. take a car on the easterly track which was proceeding in a northerly direction or to[6] Exceptions 17-20 all relate to the deni- ward the center of the city. While standing al of the plaintiff's motion for a new trial in this position she was run down by the debased upon the grounds that the verdict was fendant's automobile. At the time of the acagainst the law, the evidence, and the weight | cident the automobile was being operated by one Sydney A. McMillan, who was its sole the trip in its purpose was, under the ciroccupant. The plaintiff testified that before cumstances, necessarily preliminary to the stepping off the curbing she looked in both ride which the defendant desired and prodirections, but saw no automobile; that it posed to take. It was for her benefit, and in was raining, but she had taken down her that respect widely differs from cases where umbrella, being about to board the car; that a chauffeur, for his own purposes, deviates she received no warning of the approach of from his route or extends his trip beyond the the automobile, and was not aware of its point required in the discharge of his duty proximity until it struck her. to his employer. The jury returned a verdict for the plain- The defendant cites two cases which suptiff, and assessed damages in the sum of port the proposition that the owner of a $500. The defendant's motion for a new trial horse and carriage or the owner of an auwas denied by the trial court. The defend-tomobile is not responsible for damages arisant's bill of exceptions alleges two errors on ing from the carelessness of a borrower who the part of the trial court: (1) The denial is using the same for his own purposes: of her motion to direct a verdict in her fa- Herlihy v. Smith, 116 Mass. 265, and Cunvor on the ground that the operator of the ningham v. Castle, 127 App. Div. 580, 111 automobile was not in the employ of the de- N. Y. Supp. 1057. Our conclusion being that fendant at the time of the accident, but was McMillan was not a borrower, but was actengaged on an independent mission; and (2) ing as the servant or agent of the defendant the denial of the defendant's motion for a and for her benefit, these cases are not apnew trial. plicable to the case before us. [1] McMillan was a student in the Tech- [2] The defendant states in her brief that nical High School; he held a chauffeur's li- there are but two questions which she decense, and had been accustomed, for some sires to press. One of these questions we time, to drive his father's automobile. Mrs. have already discussed. The other question O'Rourke, the defendant, considered him to is, "Was the plaintiff, on her own statebe a careful driver, and he had driven her ment, clearly guilty of contributory negli automobile on several occasions prior to the gence?" We assume, from the form in which day of the accident. For these services he the question is presented, that the defendant received no compensation. They were ren- means, Was the plaintiff guilty of contribudered in a spirit of friendly accommodation, tory negligence as a matter of law? We do he being on terms of sociability with the not think that she was. She testifies that family. On the day of the accident McMil- before leaving the curbstone she looked in lan called at the defendant's home in the both directions and saw no vehicle approachearly evening and was requested by her to ing, and that she heard no warning, and was take her for a drive in the automobile, which unaware of the presence of the automobile was then standing at the door. McMillan ex- until it struck her. She was on the side of pressed his willingness to comply with the the track from which passengers were exdefendant's request, provided that he could pected to board the cars, and she had lowfirst go home and inform his father and ob-ered her umbrella in preparation for steptain his consent, whereupon the defendant ping upon the car, which was almost betold him that he could, if he wished, take side her. the automobile for that purpose. He took the automobile, and it was on the way back from his father's house that the accident occurred. The defendant contends that these facts show that McMillan was engaged upon an independent and personal mission, and not as the servant or agent of the defendant, and therefore it was error on the part of the trial court to deny her motion to direct a verdict in her favor. We cannot accept this contention of the defendant. She suggested and offered to McMillan the use of her automobile for the purpose of seeing his father and obtaining his consent without which he would have been unable to render her the assistance and service which she desired. Not only did McMillan make use of the defendant's automobile at her suggestion and with her approval, but Upon this question the defendant cites the case of Dimuria v. Seattle Transfer Co., 50 Wash. 633, 97 Pac. 657, 22 L. R. A. (N. S.) 471. In that case the plaintiff held an umbrella over his head in such a position as to prevent his seeing an approaching team, and in that manner attempted to cross the street without looking in either direction before or after he started to cross. The facts differ materially from those of the case before us. If there was any question of contributory negligence in the case at bar, it was a question for the jury. The jury have rendered a verdict for the plaintiff, which has been approved by the trial court, and we see no reason for disturbing it. The defendant's exceptions are overruled, and the case is remitted to the superior court, with direction to enter judgment for the plaintiff on the verdict. |