48 Conn. 361 | Conn. | 1880
In this action the plaintiffs sought to recover the value of ' eight thousand and twelve bushels of com alleged to have been lost through the negligence of the defendants in transporting tlie same from Jersey City in the state of New Jersey, to the city of Bridgeport in this state.
The case was entered upon the jury docket for trial, but before it was reached the defendants entered a general demurrer to the declaration, which was overruled by the court. Thereupon the defendants, instead of answering further in the case, moved for a hearing in damages, which was had. On the hearing the plaintiffs proved the number of bushels of corn belonging to them, which were lost while being transported by the defendants, and their value, amounting to 15,007.60, and then rested their case. The defendants offered no evidence, but insisted in the argument that nominal damages only should be awarded by the court, on the ground that the plaintiffs had failed to prove that the defendants were guilty of negligence in the matter. The court ruled in accordance with the defendants’ claim, and gave judgment for the plaintiffs to recover nominal damages only. The correctness of this Judgment we are now called upon to consider.
It has been settled by a long course of decisions in this state, that, on a hearing in damages in cases like the present, it may be shown whether or not the defendant was guilty of negligence which caused the injury complained of; and if it should be found that he was free from negligence, nominal damages only will be awarded by the court, however great may be the damages in fact; but it has in no case been definitely determined on which party rests the burden of proof in such cases.. As a matter of fact, however, in every case which has come before this court, where it appears which party went forward, the defendant has»assumed the burden of proving that the injury did not occur in consequence of his own negligence; and the only controversy has been respecting the defendant’s right to offer such proof; the plaintiff claiming that the default, involving a non-denial of the facts, op the demurrer overruled and the neglect to plead over, as
This appears, not only from the cases themselves, but from the fact that if the plaintiff had assumed the burden of proof under the general issue, there would have been no ground of complaint, and the cases would never have reached this court.
In the leading case of Havens v. The Hartford & New Haven R. R. Co., 28 Conn., 69, the controversy before this court was, whether in a hearing in damages after a demurrer overruled, the defendants had the right to show that the plaintiff contributed to the injury he received by his own negligence. In Daily, Admr., v. The New York & New Haven R. R. Co., 32 Conn., 356, the defendants again, in a hearing in damages after a demurrer had been overruled, offered to show that the plaintiff’s intestate brought the mischief upon himself by his own negligence. In Carey, Admr., v. Day et al., 36 Conn., 152, the defendants assumed the burden of proof as- to the non-existence of negligence on their part in a hearing in damages. Such was the case also in McAlister v. Clark, 33 Conn., 253, Merriam v. The City of Meriden, 43 Conn., 173, and Batchelder v. Bartholomew, 44 Conn., 494.
It would seem to follow from this long continued practice of the legal profession in cases of this character, from that of Havens v. The New York & New Haven R. R. Co., in the 28th Conn. R., down to that of Batchelder v. Bartholomew, in the 44th, that the opinion of the profession has been that on a hearing in damages after a demurrer overruled, when the plaintiff shows by evidence the extent of his injury, the cause of action admitted by the demurrer and extending only to nominal damages where they are unliquidated, primó, facie covers the whole injury which the plaintiff has proved. This practice well accfords with what must be the correct doctrine in principle. Take this very case, where more than eight thousand bushels of corn was lost in one disaster. The plaintiffs bring their action to recover the value of the corn, alleging that the loss occurred through the negligence of the defendants. The defendants demur to the plaintiffs’ declara
All that prevents this case from being decisive of the question here at issue is the fact that the burden of proof was not so definitely raised on the trial as it is here, although the question was involved in the decision of the case. The Superior Court found the facts on a hearing in damages after a demurrer to the declaration had been overruled. The court found that the plaintiffs received the injury while driving a vicious horse along one of the defendant’s highways at a place where the road was so raised above the adjoining ground as to endanger travel, and the viciousness of the horse and the want of a sufficient railing by the side of the highway jointly contributed to produce the injury of which the plain
What was said by the court in Lamphear v. Buckingham, supra, tends also to the same conclusion.
The defendants rely upon some expressions of the court in Batchelder v. Bartholomew, supra, in support of their claim, that the burden of proof is on the plaintiffs to show negligence in the defendants in order to recover more than nominal damages. But this question was not raised in that case, nor could it have been, for the defendants assumed the burden of proof on the trial. Whatever remarks therefore were made by the court in discussing the question whether or not the default and non-denial of the facts in that casé conclusively admitted the cause of action to the extent of the injury received, must be taken to have been made in reference solely to the facts of the case and the question under discussion. Banforth v. Adams, 29 Conn., 107.
The same may, be said in regard to the case of Shepard v. New Haven & Northampton Co., 45 Conn., 54. The sole question there raised was one of vai’iance between the proof and the declaration, and the remarks of the court were made wholly with reference to that question. These cases cannot help the defendants.
There is error in the judgment complained of.
In this opinion the other judges concurred.