69 Conn. 201 | Conn. | 1897
This is an action to recover damages for killing a mule. In substance the complaint alleges that the
To this second defense the plaintiff filed a demurrer. The court sustained the demurrer as to paragraphs two and three, and overruled it as to paragraphs one and four of said defense.
The plaintiff then filed a reply to paragraphs one and four of the second defense, the second paragraph of which reply reads as follows: “ The plaintiff admits so much of paragraph 4 of the defendant’s second defense as is consistent with the plaintiff’s complaint, and denies the balance of said paragraph 4.” To this second paragraph of the reply the defendant demurred, because it did not specify the allegations which it purported to deny, and because it was evasive. The court overruled this demurrer. The case was then tried
The substance of the material facts found may be stated as follows : On the day of the accident and prior thereto, the defendant, a grocer in New Haven, was returning on his delivery wagon, accompanied by a friend, to his store, and was driving along Bridge street. He had owned the horse he was then driving about two months. It had been brought from the West a few months before, had not been well broken and was easily frightened by railroad trains. “ The defendant, who was not an experienced driver, had found it necessary on a prior occasion to turn about and drive away from the railroad crossing hereinafter mentioned, in order to keep his said horse, which was frightened by a train, from running away.” The tracks of a steam railroad cross Bridge street at grade, and gates operated by machinery are kept there to protect the public in using the- crossing. The number of tracks, the passing of frequent trains and switching engines, and the raising and lowering of the gates, combine to make this crossing dangerous, “and especially so to those driving across with horses not well broken.” When the defendant, in driving along Bridge street as aforesaid, reached this crossing, his horse became frightened by one of the switching engines and ran away, throwing the defendant and his friend out of the wagon. The horse ran about an eighth of a mile when it slipped and fell down, and was caught by some bystanders “ who disentangled it, got it up, hitched it into the wagon again, and turned it over to the defendant when he appeared soon after.” The defendant then got into the wagon and drove back towards the crossing for the purpose of returning to his store, advising his friend not to ride with him because of the excited condition of the horse. When the defendant arrived within about one hundred yards of the crossing he guided his horse up to the rear of a cart standing on the side of the street. At this time the gates were closed to allow a freight train to pass over the crossing, and some fifteen or twenty teams on both sides of the crossing were waiting for the gates to be raised. The defendant
The court found, in substance, that the defendant under these circumstances was guilty of negligence in undertaking to drive his horse over the crossing, and also that the plaintiff was not guilty of contributory negligence.
Upon these facts the defendant claimed, as matter of law, that the injury complained of was the result of unavoidable accident. This claim the court overruled.
Upon this appeal the defendant claims that the court below erred: (1) in sustaining the plaintiff’s demurrer; (2) in overruling the defendant’s demurrer; (3) in basing its judgment upon facts found which were not in issue in the case; (4) in rendering judgment for the plaintiff, after having decided all the facts in issue in favor of the defendant; (5) in not holding, upon the facts found, that the injury complained of was due to unavoidable accident; (6) in imposing upon the defendant a higher degree of care than the law demands.
These claims will be briefly considered in the order above stated. The first is, in substance and effect, that the action of the court deprived the defendant of the right to prove the facts set up in the second and third paragraphs of the second defense. But the facts so set up, if available at all as a defense, in whole or in part—either alone or in connection with the paragraphs of the second defense, which the court allowed to stand, and to the extent that they were thus available— could be given in evidence under the pleadings on which the case was tried; and for aught that appears were so given in
The same thing is true with regard to the second claim. We think the defendant’s demurrer to the reply should have been sustained. The paragraph demurred to was clearly objectionable and bad, in that its admissions and denials were not as specific as the rules require; but it is impossible upon this record to see how the action of the court in overruling the demurrer can have so harmed the defendant as to entitle him to a new trial. If the demurrer had been sustained, and the denials and admissions of the reply had been made as specific as the rules require, it might possibly have lightened a little the labors of the defendant on the trial; but it is difficult to see how it could have affected in any material way the trial itself, or changed the result reached by the court. So far as appears, a full and fair trial was had upon what was in effect a general denial of all the material allegations of the complaint, and the defendant had the opportunity to prove every fact that could legally avail him as a defense in whole or in part, and doubtless he availed himself of that opportunity. Under the circumstances disclosed by the record we think this technical error did the defendant no harm, and for such an error a new trial is never granted.
The third claim is that the facts found upon which the judgment was rendered, were not within the issue; and the fourth is that the court, having decided all the facts in issue in favor of the defendant, erred in rendering judgment on them in favor of the plaintiff. Upon a careful inspection of the record we are of opinion that these two claims are destitute of any valid foundation.
The fifth claim is that the facts found show that the injury complained of was due to unavoidable accident. This appears to have been the only claim made before the trial court, and it was there claimed as matter of law, and presumably is so claimed here. Whether the injury was caused by the negli
The sixth and last claim is that the court imposed upon the defendant a higher degree of care than the law demands. The record fails to show any foundation, for this claim.
There is no error.
In this opinion the other judges concurred.