| Conn. | Mar 15, 1858
We do not think it necessary to examine minutely the evidence on which it is said that the jury came to a wrong conclusion in their verdict, for every cause must depend on its own circumstances ; and our business is to see that true principles of law are laid down and applied to those circumstances as they are developed.
The law with regard to the granting of new trials for a verdict against evidence has been so often before us, and is so readily apprehended and applied, that we can not think it necessary or proper to spend many words upon the subject. The general rule is, that a new trial will not be granted for a verdict against evidence, unless the verdict is so manifestly against the evidence as to make it apparent that the jury adopted some wrong principle in their deliberations, or that their minds were not open to reason and conviction, but for some cause or other were improperly and unduly influenced. If they have carefully and thoroughly examined the cause
Applying now this well established rule to the present case, we perceive no cause'for granting a new trial. Indeed, were we called upon to express our own convictions after reading this evidence attentively, we should be much more likely to agree than to disagree with the jury. The testimony on the part of the defendants alone, were there nothing more before us, is, we think, sufficient to sustain the verdict.
It appears that the defendants were at the time running a train of freight cars, some forty or fifty according to the testimony of the engineer, and some thirty or more according to another witness, through the inhabited portion of the city of Norwich ; that the rate of speed, (if we take the testimony of the engineer) was from ten to fifteen miles an hour, or (if we take that of the defendants’ witnesses generally, which we are inclined to do,) from five to eight miles; and this too around a curve completely walled in under a bridge, so that, as the engineer says, standing in his cab, he could not see the place where the accident happened when only some forty paces from it; that at the time the train was propelled by two engines, one in front and one in rear, the former a very powerful one, the largest the company had ; and that the child was not seen more than from six to ten seconds before the engine was upon it. These are the facts proved by the defendants’ witnesses, without looking at all into the testimony of the plaintiff-, and from them we must say, that, considering the circumstances, the engineer was not conducting his train in a careful and prudent manner. He certainly did not have the control over it which he ought to have had in a city where persons are often passing and repassing over and along the track. Indeed we think that locomotives with trains of cars attached should not be allowed to pass through the inhabited parts of our cities with such force or speed as to be incapable of immediate and absolute control, and even then, not without special care to see that the track is all
Upon the question of law, whether the court should have charged the jury that if the plaintiff was wrongfully on the track or if there was a want of'ordinary care on the part of the plaintiff’s parents in permitting her to leave the house and go upon the road without any one to watch or protect her, and such want of ordinary care materially contributed to produce the injury, the verdict should be for the defendants, unless it should be found by the jury that the injury was voluntary or caused by gross negligence on the part of the /defendants; we entertain no doubt that the view expressed by the judge is entirely correct.
The verdict of the jury establishes the fact stated in the plaintiff’s declaration, which indeed lies at the very foundation of her right of action, that her injury was caused by the negligent and improper conduct of the defeadants’ ser
It is important, in the outset, that we understand on what exact ground it is that in actions' for injuries through the negligence of the defendant, the plaintiff is not allowed to recover, when a want of care on his part, has concurred, in any material degree, in producing it. The reason was first stated in Butterfield v. Forrester, 11 East., 61, which doctrine has since been recognized and acted upon as sound law in the English courts and in this country; and no where is it more clearly and satisfactorily commented upon than in the opinion given in Beers v. Housatonic Railroad Company, 19 Conn., 566" court="Conn." date_filed="1849-06-15" href="https://app.midpage.ai/document/beers-v-housatonuc-rail-road-6576234?utm_source=webapp" opinion_id="6576234">19 Conn., 566, where most of the cases in the books are referred to. “A party,” says Lord Ellenborougb, “ is not to cast himself upon an obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another’s using ordinary care for himself.” Two things must concur to support this action ; an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Mere fault in the plaintiff is not the test; it must be fault to such a degree as to amount to a want of ordinary care. So much as this the law requires from every one at all times, as thereby possibly and quite probably he would avoid the injury caused by the negligence of the other party. If a person will not bestow so much care upon himself and his actions as this, he may with truth be said to bring upon himself the injury of which he complains. But if such care would not have avoided the injury, then the plaintiff may recover by an action, for the reason that the injury is attributable to the negligence and misconduct of the defendant. I speak of the general rule, for I do not mean to call in question the doctrine of a certain class
Let us now apply this doctrine to the present case. And first, it is obvious that the negligence of the parents, (if.there was any,) is not the want of ordinary care in a child less than three years of age, however much such negligence might be a defence to an action by the father, had he sued the company for expenses incurred, or for loss of service. The injury is none the less caused by the negligence of the defendants’ engineer, because of the plaintiff’s age; and the plaintiff, as the jury have found, (and it might almost have been assumed as matter of law,) was guilty of no neglect or culpability whatever; so that notwithstanding all this, she is entitled to recover for the wrong of the other party.
Nor is there more force in the objection that the plaintiff herself participated in causing the injury by being on the track, or being there without authority, and therefore, as it is said, a trespasser. If she was a trespasser she was only technically so, and under the charge the jury must have found that she was moved only by the impulse of childish instinct, and was not old enough to be charged with fault or blame for being in a place of danger. There was certainly no negligence imputable to herself, for she had no discretion, or knowledge, or capacity, and so the jury must have found. Where then is her participating negligence, which, under the rule, bars her recovery for the negligence of the defendants or of their servants ?
In another point of view, the age and situation of the plaintiff at the time were most material and very proper to be considered by the jury, and so the court instructed them,— that is, for the purpose of ascertaining whether the defendants’ engineer was in fault, whether he in fact was negligent, or whether there was any thing in the age, or size, or position of the child at the time, tending to disprove his negligence. Upon this point, doubtless, the engineer was entitled to the full benefit of every circumstance bearing upon his conduct. He might insist that he was not obliged to
If authority is wanted for the foregoing doctrine, we have it in the recent case of Birge v. Gardiner, 19 Conn., 507" court="Conn." date_filed="1849-07-15" href="https://app.midpage.ai/document/birge-v-gardiner-6576219?utm_source=webapp" opinion_id="6576219">19 Conn., 507. There the plaintiff, a child under seven years, was severely injured by the falling of a gate upon it, breaking its leg. The gate was erected on the land of the defendant, on or near the line of a certain lane or public passway, leading from the highway back a few rods to several dwelling houses, in which resided as many families, containing eight or nine children, who frequently passed along the lane. This lane was the common passway for all persons from the highway to these dwelling houses, and the plaintiff was one of the children dwelling in one of the houses with his parents. It was claimed that the plaintiff was playing in the lane and near the gate, and without liberty put his hands upon it and shook it, and thereby occasioned it to fall on and injure him ; and that if he had not done so the injury would not have happened. The defendant claimed that he was not liable, and urged the same reasons substantially as are urged in the present case, but the court held that they were not sufficient, and that the defendant was liable. The court say: “It becomes a question very material in this case, whether the plaintiff could be truly said to have been guilty of negligence, or such a degree of it as that the defendant could legally avail himself of it in his defence. The plaintiff was
The case of Lynch v. Nurdin, 1 A. & E. (N. S.,) 29, is one of the same character. There the plaintiff, a boy under seven, without authority got up into the defendant’s cart, which, with the horse attached, his servant had left standing alone in the street, at the door of a house where he had gone in, and where he remained for a half hour. While he was absent children gathered about the cart, and the plaintiff having mounted it was getting off and was on the shaft when another boy led the horse along, which threw the plaintiff’ out, and the wheel passed over his leg and broke it. The jury found that the. negligence of the defendant’s servant was the cause of the accident. The court say: “ It is urged that the mischief was not produced by the mere negligence of the servant, as asserted in the declaration, but at most by that negligence in combination with two other active causes,—the advance of the horse in consequence of his being excited by another boy, and the plaintiff ’s improper conduct in mounting the cart and so committing a trespass on the defendant’s chattel. On the former of these twro causes no great stress was laid, and I do not apprehend that
For these reasons we do not advise a new trial.
In this opinion the other judges concurred.
New trial not advised.