(108 A.)

1. DIVORCE 1, 61⁄2, 165(1)-DECREE IN DIVORCE CASE NOT A "JUDGMENT" WHICH CAN

BE VACATED.

Divorces are purely statutory, and follow the course of equity, so far as the same is applicable; and a decree of divorce is not a "judgment," which can be vacated, under Gen. Laws 1909, c. 297, § 1, by reason of accident, mistake, or unforeseen cause, etc.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Judgment.]

A final decree of divorce was entered March 24, 1919.

On November 11, 1919, the respondent in the original proceeding filed this petition, seeking to vacate said final decree and to obtain a trial upon the petition for divorce, and alleges that she was in Italy with her husband's consent; that at the time the petition was served on her she was unable, by reason of the war, to leave Italy and come to Rhode Island to defend the petition; and that on her first opportunity she came to Rhode Island and filed this petition which is based on sections 1 and 3, of chapter 297, General Laws 1909.

[1] Said section 1 reads as follows:

"A party or garnishee in any action or pro

2. DIVORCE 175-APPEAL NOT PROPER REM-ceeding in the superior court or in any district

EDY IN DIVORCE.

Divorces being heard by a justice sitting without a jury, the action of the justice therein is reviewable only on exceptions.

5. DIVORCE 165(4)-FINAL DECREE IN DIVORCE CASE NOT VACATED FOR MISTAKE, ACCIDENT, ETC., IN ABSENCE OF EXCEPTIONS.

A decree of divorce cannot be vacated after six months, under Gen. Laws 1909, c. 297, § 3, although defendant was in Italy, and could not reach the United States to defend in the action, where neither the defendant, her counsel, nor any one else, took exceptions on the trial, in view of chapter 298, § 10.

Action by Antonio Scolardi against Elisabetta Scolardi, in which plaintiff obtained a decree of divorce. Petition by defendant to vacate the final decree, and to grant new trial. Petition denied and dismissed.

Benjamin Cianciarulo, of Providence, for petitioner.

Pettine & De Pasquale, of Providence, for respondent.

RATHBUN, J. This is a petition filed in this court to vacate a final decree entered in a divorce case and to grant a trial.

court wherein no trial has been had, against whom a judgment has been rendered on nonsuit, default, or report of referees, by reason of accident, mistake, or unforeseen cause, may, within one year after such judgment, petition the Supreme Court for a trial; and the Supreme Court may order a trial in the action or proceeding in the court in which such judgment was entered, upon such terms as the Supreme Court shall prescribe."

This section affords no relief to the petitioner as no judgment has been entered against her. No judgment can be entered in a divorce case. Divorces in this state are purely statutory and follow the course of equity so far as the same is applicable. In equity and divorce causes the decision of the court is embodied in a decree and the petitioner is asking that a decree and not a judgment be vacated.

Said section 3 reads as follows:

"When any person is aggrieved by any order, decree, decision, or judgment of the superior court or of any probate court or town council, and from accident, mistake, unforeseen cause, or lack of evidence newly discovered, has failed to claim or prosecute his appeal, or to file or prosecute a bill of exceptions, or motion, or petition for a new trial, the Supreme Court, if it appears that justice requires a revision of the case, may, upon petition filed within one year after the entry of such order, decree, decision, or judgment, allow an appeal to be taken and prosecuted, or a bill of exceptions or a motion. for a new trial to be filed and prosecuted, upon such terms and conditions as the court may prescribe."

Has the petitioner, "from accident, mistake, unforeseen cause, or lack of evidence newly discovered *** failed to claim or prosecute" her "appeal, or to file or prosecute a bill of exceptions, or motion, or petition for a new trial"?

This respondent filed in the superior court his petition, divorce No. 9750, Antonio Scolardi v. Elisabetta Scolardi, for a divorce from this petitioner. Citation in the original divorce proceeding was duly served upon the respondent, this petitioner, in Italy. No appearance being entered for the respondent, [2-4] It cannot be said that "from accithe case was heard as an uncontested peti- dent, mistake," or "unforeseen cause" she tion, and the petition was granted on Septem- has failed to claim or prosecute her appeal, ber 21, 1918, on the ground of extreme cruelty. i because there is no appeal from a decision in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

No fraud is alleged. The court had jurisdiction to hear the divorce petition. A final decree has been entered, and the divorce has become final.

The petition is denied and dismissed.

Appeal from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Bill in equity by John B. Carpenter against Luigia Santurri and another. From a decree for complainant ordering specific performance of an agreement to convey land, the respondents appeal. Appeal dismissed, decree of the superior court affirmed, and

In the negotiations between the parties leading up to the execution of the beforementioned agreement by the respondents the complainant was represented by one Adelbert Goff, a real estate broker.

Oral testimony was taken upon the issues raised. The superior court sustained the contention of the complainant that the option on the land was secured with the full knowledge and consent of the respondents, and a decree was entered ordering the specific performance of the contract. From this decree the respondents have appealed to this court, setting forth their reasons of appeal as follows:

(1) "That the court erred in finding that the respondents signed an agreement to sell land in East Providence"; (2) "that the court erred in finding that the respondents understood the nature of the agreement that was signed by the respondents"; (3) "that the said decree in so far as it affects these respondents is against the evidence and the weight thereof"; and (4) "that the finding and opinion of said rescript filed therein are against the law."

The questions submitted to the superior court were questions of fact, and after a careful reading of the testimony we cannot say that there was error in the conclusions reached. We do not think there would be any advantage in discussing the testimony at length.

The respondents' appeal is dismissed, the decree of the superior court is affirmed, and the cause is remanded to that court for further proceedings.

(42 R. I. 447)

JACOBSON v. O'DETTE. (No. 5317.) (Supreme Court of Rhode Island. Jan. 28, 1920.)

1. MUNICIPAL CORPORATIONS 706(7)-CONTRIBUTORY NEGLIGENCE JURY QUESTION UN

LESS FACT IS CLEAR.

The question of plaintiff's negligence contributing to collision between his and defendant's automobile is for the jury, unless it clearly appears that the only proper inference from the undisputed facts is that in the circumstances a person of ordinary prudence would not have acted like plaintiff.

2. MUNICIPAL CORPORATIONS 705(10)-EviDENCE OF NEGLIGENCE CONTRIBUTING TO COLLISION BETWEEN AUTOMOBILES.

Where the driver of plaintiff's automobile, had he looked before attempting to cross a street, would have seen defendant's approaching car coming very fast only a short distance away, in which event it would have been negligence to

653

attempt to cross, but instead looked directly ahead, so that defendant's car collided with plaintiff's plaintiff cannot recover, on account of contributory negligence.

Exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.

Action by Max Jacobson against Arthur O'Dette resulting in nonsuit, and plaintiff excepts. Exception overruled, and case remitted with direction to enter judgment on the nonsuit.

Samuel I. Jacobs, of Boston, Mass., and Walter W. Osterman, of Providence, for plaintiff.

E. Raymond Walsh, of Providence, for defendant.

RATHBUN, J. This is an action of trespass on the case for negligence to recover compensation for damage to plaintiff's automobile caused by collision with defendant's automobile. The plaintiff at the close of his testimony was nonsuited on the ground that his driver was guilty of contributory negligence. The case is before this court on exception to the nonsuit.

The collision occurred shortly after midnight in the business section of the city of Providence at the intersection of Empire and Westminster streets. Westminster street runs easterly and westerly, and Empire street northerly and southerly. The two streets cross at approximately right angles. The plaintiff's automobile was proceeding along Empire street in a southerly direction and was crossing Westminster street when it was struck at the right-hand rear wheel by defendant's automobile which was proceeding in an easterly course on Westminster street. The driver of the plaintiff's automobile blew his horn as he approached the intersection of the two streets but did not look to the right or to the left. He testified that the street was clear, and that he was looking "straight ahead towards Broad street” and did not see defendant's automobile until after he heard the crash. Had the driver looked before attempting to cross Westminster street, he would have had a clear view of Westminster street in either direction for a considerable distance. Westminster street

is the principal business street of the city, and said intersection is much frequented by pedestrians, electric cars, automobiles, and other vehicles.

[1] No question of the last clear chance is involved. The plaintiff's contention is that the question of contributory negligence should have been submitted to the jury. The question of contributory negligence is one for the jury, unless it clearly appears that the only proper inference from the undisputed facts is that in the circumstances of the case

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

OF PARENT SUFFICIENT TO DEFEAT RECOVERY
AGAINST SELLER OF CARTRIDGE TO MINOR SON.

a person of ordinary prudence would not | 2. DEATH 24-CONTRIBUTORY NEGLIGENCE have acted as did the plaintiff. As this court said in Clarke v. R. I. Elec. Lgntg. Co., 16 R. I. 465, 17 Atl. 60:

"Generally, the question of negligence is a question of fact to be determined by the jury; but sometimes, when there is no controversy as to the facts, and when it clearly appears from them what course a person of ordinary prudence would pursue, it is a question for the court."

See, also, Gaffney v. Inman Mfg. Co., 18 R. I. 781, 31 Atl. 6.

If parents expressly or negligently permit their son under 14 to handle a shotgun in such a manner and under such circumstances as to make them liable for harmful results to others, they cannot recover damages for the death of another child, caused by the gun, from the one who sold the cartridge to the son.

3. EXPLOSIVES 9-NEGLIGENCE OF SELLER OF CARTRIDGE TO BOY QUESTION FOR JURY.

In an action by parents for the death of a son killed by the accidental explosion of a shell purchased by his brother from defendant and placed in a shotgun, based on defendant's sale in violation of Act June 10, 1881 (P. L. 111) § 1, held, under the evidence, that the seller's negligence was for the jury.

DEATH

103(3)— CONTRIBUTORY NEGLI

GENCE OF PARENT IN ALLOWING USE OF EX-
PLOSIVES QUESTION FOR JURY.

In an action by parents for the death of a son killed by the accidental explosion of a shell purchased by his brother from defendant and placed in a shotgun, based on defendant's sale in violation of Act June 10, 1881 (P. L. 111) § 1, held, on the evidence, that the contributory negligence of the parents in permitting the boy to handle the gun was for the jury.

[2] Had the driver looked before attempting to cross Westminster street, he must have seen the defendant's automobile "coming very fast," but a short distance from him, in which event it would have been negligence to attempt to cross directly in front of it. The only inference that can be drawn from his conduct in proceeding as he did, without look-4. ing in any direction except "straight ahead," is that he failed to exercise common prudence. In Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66, the court held that a pedestrian by crossing a street without taking any observations except "looking straight ahead" was guilty of contributory negligence. This court in Beerman v. Union R. R. Co., 24 R. I. at page 285, 52 Atl. at page 1093, in discussing the rights of pedestrians and vehicles on the highway, said, if a pedestrian attempts "to cross from one side of the street to the other, * it would be incumbent upon him to glance up and down the street to see that he was not stepping in front of an approaching horse and carriage going at a speed that would cause collision and probable injury. One using a vehicle must use due care no less than a pedestrian." See, also, Gibbs v. Dayton, 166 Mich. 263, 131 N. W. 544; Niosi v. Empire Steam Laundry, 117 Cal. 259, 49 Pac. 185; Baker v. Pendergast, 32 Ohio St. 495, 30 Am. Rep. 620; Hannigan v. Wright, 5 Pennewill (Del.) 542, 63 Atl. 234.

We think the motion for a nonsuit was rightly granted. Plaintiff's exception is overruled, and the case is remitted to the supe rior court, with direction to enter judgment

on the nonsuit.

(265 Pa. 300)

SHAFFER et ux. v. MOWERY.

Appeal from Court of Common Pleas, Fayette County.

Action by Joseph C. Shaffer and Icyline Shaffer, his wife, against Charles M. Mowery. From an order refusing to take off a compulsory nonsuit, plaintiffs appeal. Reversed, with a procedendo.

Argued before BROWN, C. J., and MOSCHand KEPHART, JJ. ZISKER, FRAZER, WALLING, SIMPSON,

S. R. Goldsmith, of Connellville, for appellants.

E. C. Higbee, of Uniontown, for appellee.

and wife sued to recover damages for the MOSCHZISKER, J. Joseph C. Shaffer death of their son, Henry, 7 years old, who was killed on December 27, 1914, as the result, it was alleged, of defendant's unlawful act. The court below entered a nonsuit, which it subsequently refused to remove, and this appeal followed.

The father had a small farm and also con

(Supreme Court of Pennsylvania. June 21, ducted a blacksmith shop at some little dis

1919.)

1. EXPLOSIVES 9-SELLING OF CARTRIDGE TO MINOR LIABLE FOR RESULTING INJURY.

Seller of a shell or cartridge to a boy less than 14 years of age, in violation of Act June 10, 1881 (P. L. 111) § 1, making such a sale a misdemeanor, thereby made himself liable for any natural and probable result which might follow his wrongful act.

tance from his home. The family consisted of the parents and five children-Samuel, the eldest, Henry, the deceased, two girls, and a baby. On December 25, 1914, Samuel, then a little less than 14 years of age purchased a cartridge, loaded with gunpowder from the defendant, Charles M. Mowery, who owned and managed a general merchandise store. December 27th this boy was sent on

(108 A.)

82 Ind. 426, 432, 42 Am. Rep. 508; Pizzo v. Wiemann, 149 Wis. 235, 239, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803, 804; Fowell v. Grafton, 82 Ont. L. R. 550, 555; Anderson v. Settergren, 100 Minn. 294, 297, 111 N. W. 279. And see McEldon v. Drew, 138 Iowa, 390, 392, 116 N. W. 147, 128 Am. St. Rep. 203; Elkins v. McKean, 79 Pa. 493, 502; Catani v. Swift & Co., 251 Pa. 52, 53, 95 Atl. 931, L. R..A. 1917B, 1272.

an errand by his mother to a neighbor's, and of his wrongful act. Binford v. Johnston, his younger brother accompanied him. A shot gun belonging to another neighbor had been at the Shaffer home for a few days, and the owner had sent word to Samuel he wanted it returned. Samuel, before starting on the errand, without the knowledge of his parents, took this gun, with the intention of returning it to the owner. The two boys went off together, and while Henry was walking in front of Samuel the shell, which the latter after leaving home had placed in the gun, accidentally exploded and killed the former. The father was not on the farm at the time, and had no knowledge concerning the action of his two sons until after the casualty. Mrs. Shaffer did not know the boys had taken the gun, although she had been informed by Samuel during the day of his intention to return it. Samuel testified that his mother told him not to do so "through the day," but "she didn't say whether [he] was to go through the evening or not." Samuel is an intelligent lad, who helped his father around the farm, performing at least half as much work as a hired man; he said he had not done any hunting with a gun, but had shot at a mark "a few days" before the accident; that his parents "knowed [he] shot at marks around home some." While the boy stated this latter conclusion, he did not explain how either his father or mother had gained such knowledge, and, in fact, added, "I don't know as they knowed it for sure or not." This is all that appears on the point of knowledge of the parents concerning the use of the gun by their sons; and no evidence was produced or brought out that either the mother or father knew Samuel had bought or possessed the cartridge which killed his brother.

[2] Of course, if plaintiffs, or either of them (Darbrinsky v. Penn. Co., 248 Pa. 503, 505, 94 Atl. 269, L. R. A. 1915E, 781; Johnson v. Reading City, etc., Ry. Co., 160 Pa. 647, 28 Atl. 1001, 40 Am. St. Rep. 752; Gress v. P. & R. Ry. Co., 228 Pa. 482, 486, 77 Atl. 810, 32 L. R. A. [N. S.] 409, 21 Ann. Cas. 142), expressly or negligently permitted their young offspring to handle deadly weapons of such a kind, in such a manner, and under such circumstances as to make a parent legally liable for any harmful result which might ensue to others (Archibald v. Jewell, 70 Pa. Super. Ct. 247; Meers v. McDowell, 110 Ky. 926, 929, 62 S. W. 1013, 53 L. R. A. 789, 96 Am. St. Rep. 475; Johnson v. Glidden, 11 S. D. 237, 241, 76 N. W. 933, 74 Am. St. Rep. 795; Dixon v. Bell, 5 M. & S. 198, 199; Palm v. Ivorson, 117 Ill. App. 535, 536), they could not recover; for the law would review them as having so far intervened in bringing about the harmful result of which they themselves complain as to assume or be fixed with the the risk thereof (Carter v. Towne, 103 Mass. 507, 508; and see discussion in Davidson v. Nichols, 11 Allen [Mass.] 514, 519).

[3, 4] In a case of this character, however, the facts and circumstances, as well as the inferences to be drawn therefrom, are for

[1] Section 1 of act of June 10, 1881 (P. the jury, who must decide, under proper L. 111), provides:

"Any person, who shall knowingly and willfully sell or cause to be sold, to any person under sixteen years of age, * * any cartridge, gunpowder or other dangerous and explosive substance, shall, in every such case, be guilty of a misdemeanor."

When defendant sold the shell to Samuel, he violated this statute, thereby making himself liable for any natural or probable harmful result which might follow in the wake

instructions on the law (Archibald v. Jewell, supra, 70 Pa. Super. Ct. 251; Herron v. Pittsburgh, 204 Pa. 509, 514, 54 Atl. 311, 93 Am. St. Rep. 798), the points involved, including the question of the negligence of the parents. On the evidence at bar none of the issues can be ruled as a matter of law. The case should have been submitted to the jury, and therefore the court below erred in entering a nonsuit.

The judgment is reversed, with a procedendo.