Donovan v. Hartford Street Railway Co., 65 Conn. 201

65 Conn. 201 | Conn. | 1894

Lead Opinion

Fenn, J.

The plaintiff’s, first reason of appeal is that the “ court erred in striking out of the original complaint on the motion of the defendant the allegation that the defendant was on October 25, 1890, a ‘ common carrier of passengers by horse railroad,’ because it appears by other allegations in the complaint, that at the time and place of the accident, the relation of carrier and passenger existed between the parties, and that the plaintiff was injured while attempting to carry out, on her part, an implied contract between her and said car driver, that she should take passage on said car, at that point on said Asylum street, where she was struck by said car, by its having been negligently turned from the track whereon it should have gone.”

The plaintiff thus, it will be seen, bases her claim of error upon the concession of that which is manifestly true, namely, that the action of the court of which she' complains could injure her only in case the other allegations of the complaint showed that the relation of carrier and passenger existed, at the time of the injury, between the defendant and herself. In other words, the statement that the defendant was a common carrier of passengers would be irrelevant in a complaint for personal injury, unless such complaint contained other statements showing that the person injured sustained such a relation to such common carrier, as conferred the right, by reason thereof, and in no other way, to recover damages for such injury in an action based on contract for failure to perform an implied promise, or in tort for the breach of an imposed duty. McElroy et ux. v. Nashua & Lowell Railroad Co., 4 Cush., 400, 403; Eaton v. Boston & Lowell R. R. Co., 11 Allen, 500; Buswell, Personal Injuries, § 5.

Our first inquiry, therefore, is, does the complaint in this case contain such allegations? The gist of the averments in reference to the injury is, not that the plaintiff was hurt, either while riding upon the car of the defendant, or while in the act of getting on or off of such car. It is not even alleged that at the time of the injury the plaintiff was upon premises lawfully in the occupation or control of the defendant ; but the statement is that the injury occurred while the plaintiff was at a safe distance from the track on which the car should go, a place safe for the plaintiff and convenient for her to get on board. It would seem from the complaint that the place where she awaited the car was the same from which she gave the signal that she desired to get on board —a signal which we are asked to infer was seen and recognized, although the complaint fails to aver that fact.

Again, the injury is not alleged to have been received by reason of the failure of the defendant’s servants to acknowledge or respond to, or to comply with, the signal of the plaintiff ; nor that they failed to use proper endeavors to stop, or in fact to stop, as soon as they should have done, in order to receive the plaintiff on board, at the place desired by her ; but the allegation is that the car while going was so carelessly and negligently managed and directed as to turn from the track where it should have gone, and ran against the plaintiff. Now it is manifest that here is no allegation of a cause of action growing out of the relation of carrier and passenger, in express terms, and according to the rules of pleading, which require direct statements, and exclude those by way of argument or inference merely, which demand the averment of ultimate and issuable, not of probative or evidential, facts. While, therefore, what the plaintiff’s counsel say in their brief, referring to the Connecticut Practice Act, pages 57, 58, 59, is correct, namely, that “ the forms adapted to suits of this character all contain the allegation that the defendant was a common carrier,” it is equalty true that they all contain also other allegations making such averment relevant, showing a contract,'undertaking or duty; or a liability of the defendant to the plaintiff, growing out of the relation of the parties, which is here utterly wanting, so far as any direct or positive statement is concerned.

But more than this, the facts stated in this complaint are not such as even indirectly, and by way of evidence or inference, tend to indicate, either the existence of the relation of carrier and passenger between the parties, or, if we were to assume such relation, that the cause of action was in any way founded upon it. The negligence relied on was such as might just as well arise in any case where two persons were using the public street, each lawfully, but each independent of the other, and of course in any such case it would not matter that one of such persons was a common carrier. Even if it could be held — and no case we think can be found anywhere that would be a precedent for the ruling — that the defendant was under a special duty imposed upon it by law, to stop its car so as to safely receive the plaintiff as a passenger, there is, as we have seen, nothing in the complaint adapted to recovery for a breach of such duty. It was not in fact claimed that any injury was so received, but instead it was claimed, in argument, that if the car had stopped before entering upon the switch, and before reaching the place where it would be necessary, in order to have taken the plaintiff on board, the deflection might have been prevented. Evidence, therefore, of an injury by failure to stop to allow the plaintiff to get on board would not have been admissible. Shepard v. N. H. N. & Co., 45 Conn., 54. “ Under the Practice Act, the right to recover rests upon and is limited by the facts alleged in the complaint.” Loomis, J., in Powers v. Mulvey, 51 Conn., 432.

But without further discussion of this matter it must, we think, be evident that the ruling of the court could in no way have injured the plaintiff, provided, notwithstanding such ruling, the facts as to the situation of the parties were fully found, as they appear and are conceded to be, and that such facts show that such relation of carrier and passenger did not exist at the time when the plaintiff was struck by the car. We think they do so show; for while perhaps more favorable to the plaintiff’s contention on this point than the allegations of the complaint — since it appeared in evidence that the driver did see, and responded to the plaintiff’s signal; that he expected to stop for her to get on board, and that she advanced upon the cross-walk for that purpose — ■ such facts are not sufficient to establish the relation, Creamer v. West End St. R'y Co., 156 Mass., 320 ; Platt v. Forty-second St. & Grand St. Ferry R. R. Co., 2 Hun, 124; Booth, Street Railways, § 326.

A common carrier is bound to exercise a high degree of care towards those who have put themselves under his care as passengers; but not until they have thus put themselves under his care. Up to that time, although they may have contracted with him for their future transportation, he owes no more care to them than to any third party. His special duty begins when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of passenger to carrier is assumed.

We therefore think the plaintiff was not injured by the action of the court, in this regard. Indeed, upon the facts alleged and shown, the court was bound, without this averment, (therefore unnecessary by the rules of both common law and code pleading) to take judicial notice that the defendant was a common carrier of passengers, if such fact was relevant. Special Laws of Conn., Vol. 5, pp. 306, 492; General Statutes § 1087.

The second reason of appeal is that the court erred in not holding, upon the facts found, that the defendant was guilty of negligence in not avoiding the deflection of its car from its Asylum street track to and upon its branch track, which deflection caused the injury to the plaintiff. We think id clear that whether there was negligence in this respect must, under the exceptional circumstances of the case, be regarded as a question which can be determined by no standard save that of the conduct of a reasonable man of ordinary prudence under like circumstances; that is to say, the law can apply no precise measure or rule, and therefore the inquiry is one of fact, in regard to which the determination of the trial court is conclusive. Farrell v. Waterbury Horse R. R. Co., 60 Conn., 239; Fritts v. N. Y. & N. E. R. R. Co., 62 id., 503; O'Neil v. Town of East Windsor, 63 id., 154.

The remaining reason of appeal alleges error in overruling the plaintiff’s claims of law, upon the facts found; restating thus, in effect, the ground of the previous reason, adding, however, the claim that, it being found that there was no contributory negligence on the part of the plaintiff, the proof of the accident -was prima facie evidence of negligence, on the part of the defendant, which was not rebutted by the facts of the case. We think the law is otherwise. Button v. Frink, 51 Conn., 342, 351; Lennon v. Rawitzer, 57 Conn., 583, 587.

There is no error in the judgment complained of.

In this opinion the other judges concurred, except Hamersley, J., who dissented.

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Dissenting Opinion

Hamersley, J.

(dissenting). I cannot concur in the conclusion reached by a majority of the court.

First: The complaint as originally drawn alleged that the defendant was at the time of the accident a common carrier of passengers by horse railroad, and that the plaintiff had then occasion to take passage on one of the cars of the defendant, of the color and kind usually run on said line westward at said Ford street; that the plaintiff at said time was at the corner of Asylum and Ford streets, when a car of the defendant, westward bound, approached the place where the plaintiff was awaiting the same; that she gave to the servants of the defendant in charge of said car the usual and customary signal that she wished to board the car; that the plaintiff was then at a distance from the tracks of the defendant on which said car should go such as to render it safe for the plaintiff, and convenient for her to get on board the same, had it not been for the carelessness and negligence of the defendant and its said servants; that said servants so carelessly and negligently managed and directed said car that it turned from the track where it should have gone and ran against the plaintiff with great force and violence ; that by means thereof the plaintiff was injured, etc.

Upon motion of the defendant the court ordered the allegation that “ the defendant at the time of the accident was a common carrier of passengers by horse railroad, and that the plaintiff had then occasion to take passage on one of the cars of the defendant of the color and kind usually run on said line westward at Ford street,” to be stricken from the complaint. This was error.

It is evident the allegations expunged relate to the very gist of the plaintiff’s special cause of action. She was not seeking redress on account of negligence in the driver of a private carriage, or of an express cart. The negligence relied on was not such as might arise where two persons are using the public street each independent of and under no special duty towards the other; it was the negligence involved in the performance of the duty imposed by law upon a common carrier of passengers, being a street railroad corporation, towards a person having occasion to use a car of that company and having duly signified a desire to use that car, and approaching the car with the knowledge of its driver for the purpose of entering the same. The fact that the defendant was running the car in question as a common carrier of passengers, and that the plaintiff was exercising her legal right to approach and enter this car as a passenger, with the knowledge of the defendant, constituted material facts on which the pleader relied. The conditions of an injury, the special relations of the persons at the time of the injury, and their special rights and duties towards each other, are material facts on which the pleader has a right to rely in an action based on injury from negligence. In granting the motion to expunge, the court necessarily ruled that the fact that the injury was caused while the plaintiff was in the exercise of her legal right to approach and enter the car, and while the defendant was under a special duty imposed upon it by law, to stop its ear so as safely to receive the plaintiff as a passenger, could not be treated as a part of the transaction proper to be considered in determining what care was actually exercised by the defendant, but was wholly immaterial to the plaintiff’s cause of action. I think such ruling was material error.

It was suggested in argument that the allegation was immaterial because the complaint did not directly allege that “ the relation of carrier and passenger existed between the parties, and that the contract relation of carrier and passenger could not be inferred from the other facts alleged.” This assumes that the allegation was material only as introductory to an allegation of the contract relation of carrier and passenger. This assumption is not true. The allegation was material as supporting the duty implied by law from the fact alleged, viz : the duty to stop its car at the place mentioned, and with the care proper to enable a person who had started to board the car in the manner alleged, to do so safely. That such duty is imposed on the corporation as a corollary to the special privileges granted it, seems clear. Whether the obligations of that duty are analogous to, or the same as, the obligations involved in the contract relation of carrier and passenger is immaterial to the question in hand; and it is therefore immaterial whether such contract relation may begin when a waiting passenger demands passage and his demand is acquiesced in by the defendant, or must be postponed a few seconds until the passenger’s hand or foot is brought in actual contact with the car.

It was also claimed that such error is not material because the court did in fact take judicial notice of the defendant’s being a common carrier of passengers, and did receive all the evidence which the plaintiff could introduce under the allegations expunged. It seems to me that the same erroneous view of the law that induced the court to strike out the allegation, entered into the finding of the court on the question óf negligence, and injuriously affected the interests of the plaintiff; and is therefore sufficient ground for a new trial.

Second: The conclusion drawn by the court from the facts found is an erroneous conclusion of law which this court can properly review. If the fact of negligence hinged only on the prudence shown by this particular driver, in the performance of an individual duty definable only in connection with the special emergency of this one case, the finding by . the trial court of no negligence might be conclusive; but the fact of negligence hinges wholly upon a ruling on two questions presented by the ascertained and admitted facts spread upon the record.

1. Was it the duty of the defendant corporation to adopt the precaution mentioned, and bring its cars to a stop at the place specified, in order to take on passengers who are there standing for the purpose of boarding the cars in pursuance of demand for passage made by the passengers and accepted by the conductors of the cars. 2. Was it the duty of the defendant corporation to adopt such precaution for the purpose of preventing the unexpected deflection of its cars from their proper and apparent course at a cross-walk on a crowded street; an accident, always involving danger, which occasionally happens at this place.

The court below ruled that such was not the duty of the defendant, because in the opinion of the court the adoption of such precaution was not required by ordinary prudence. In this ruling I think the court erred; and fail to see how there can be any doubt but that ordinary prudence does require the taking of such precaution. The opinion of the majority of the court, however, rests on the assumption that no matter how clear it may be that the court below erred, its action cannot be reviewed because the wrong conclusion is an erroneous inference of fact, and not an erroneous ruling or “ decision upon a question of law arising in the trial.” I cannot come to such conclusion.

It is unnecessary to attempt a reconciliation of the apparently conflicting results, and more conflicting dicta, to be found in our decisions on the question of negligence as one of fact or law. I doubt if consistency is possible until we recognize the fact that the arbitrary rule (which is the rule of ancient practice changed into an absolute mandate by the constitutional provision that the right of trial by jury shall remain inviolate) which protects the province of the jury from the interference of a judge in a jury trial is inherently incapable of full application to court trials, and ought not to be conclusive when we are called upon in trials to the court to distinguish those inferences which are produced in whole or in part by weighing evidence and the credit to be given witnesses and so are inferences of fact whose settlement by the trial court is final; from those inferences which are drawn solely from facts specifically found, in producing which facts the evidence has exhausted itself and left nothing for the court but to draw its inference in the exercise of its legal judgment from the facts it has found, and so are inferences of law which can be reviewed by a court of errors. Hayden v. Allyn, 55 Conn., 289. This attempt is unnecessary because the inference of the court helow which determined its judgment is wholly based on the court’s definition of a legal public duty arising from ascertained conditions affecting the general public, and such definition, in trials to the court, has repeatedly been held by this court to be a question of law. Negligence as a fact may depend on the degree of prudence exercised by an individual in a special emergency, or it may depend on the existence of a duty to the public assumed by a corporation in accepting its charter and exercising the privileges granted thereby. In the latter case, where the facts are admitted, we have uniformly regarded the question of negligence as one of law. The right to occupy the streets of a city given to a railroad corporation, clearly involves a legal duty to use such simple and appropriate precautions as will minimize the danger to the public caused by such occupation ; and whether a particular precaution comes within that duty may be a question of law. And so in this case, when the ascertained facts clearly established the danger— that of a car suddenly diverted from its course without notice to the occupants of a crowded street, and in such manner as to so deceive a careful person that he cannot avoid ■collision; the remedy — a simple and appropriate precaution in no way onerous, involving for the defendant no delay or trouble that is not a necessary incident to the use of its appliances ; and the failure to adopt that remedy — the inference of a trial judge that such failure was not a violation of legal duty is a ruling or “decision upon a question of law” which this court should review.

In Farrell v. Waterbury, 60 Conn., 255, we held that no general rule has yet been formulated, the application of which will determine with certainty in every case, whether the inference as to negligence to be drawn from ascertained facts is one of fact or law. But the instances are many where a particular rule has been laid down, when the inference of negligence depends on the question of legal duty; and in that case the following cases in support of such particular rule were cited. Gallagher v. N. Y. & N. E. R. R. Co., 57 Conn., 446; Dyson v. N. Y. & N. E. R. R. Co., 57 id., 9; Nolan v. N. Y., N. H. & H. R. R. Co., 53 id., 461; Beardsley v. City of Hartford, 50 id., 529. In Gallagher v. N. Y. & N. E. R. R. Co., the duty of a railroad company to build a fence in a particular place was held to be a question of law, and the court says: “For these reasons we conclude that the defendant was under no duty to fence the road at the place in question, and so the entire foundation on which the trial court predicated the finding of negligence fails, and the judgment was erroneous.” In Dyson v. N. Y. & N E. R. R. Co., the duty of a railroad to slacken speed at a particular place is held to be a question of law. In Nolan v. N. Y., N. H. & H. R. R. Co., the duty to slacken speed is held to be a question of law; as also the duty to build a fence in a particular place under particular circumstances ; and the right of this court, in a case of negligence, to determine as a question of law, whether the facts stated disclose any duty which the defendant owed to the plaintiff and which was neglected, is distinctly affirmed. In Beardsley v. City of Hartford, a finding of negligence by Judge Beabdsley was overruled, because the finding involved an erroneous view of the duty of the city to take a certain precaution against danger in a highway at the place and under the circumstances stated in the finding.

To treat the determination under fixed conditions, of the legal duty of individuals or corporations, especially a duty that arises from considerations of public policy, as a question of fact to be finally settled in each case by a trial court, involves the surrender by this court of a most important jurisdiction, vital alike to the protection of individual rights and corporate interests.

The refusal to review this judgment involves such a surrender. The record is conclusive that the judgment is based on an erroneous view of the defendant’s duty under the conditions found and stated. There was no question of adequacy of performance; there was no question of the exercise of ordinary prudence in the face of sudden and peculiar emergency and of conflicting considerations that might affect one in such emergency; the conclusive and sole inference on which the judgment is based is one that decides whether under the ascertained and constantly recurring conditions found, the legal duty of the defendant requires it to take the precaution specified. This plainly appears from the finding. The injury occurred from the sudden swinging of a car from its proper track in a manner so unexpected as to strike and seriously injure the plaintiff lawfully in the street, and exercising all due caution, and also in the exercise of a legal right to enter the car in pursuance of an agreement between her and the conductor. This deflection of the car was caused by the defendant, in the use* of its own appliances. The court finds that such accident “ occasionally but not frequently happens,” and that the only way to prevent the accident is for the driver of a car approaching the switch to “ come to a full stop or slow walk, and examine the switch after the hind feet of the team have passed.” Upon these facts the plaintiff claimed as a matter of law that it was the duty of the defendant to instruct its servants “ to approach such switches at a walk or to come to a full stop if necessary so as to avoid such an accident,” and that it was the duty of the defendant’s servant in this case “ to have looked and seen whether the switch was properly placed or not when the car struck it.” Upon this claim of law the court held that the legal duty of the defendant did not require it to take such precaution, and, after finding that this precaution is not usually taken by drivers, said, “ nor do I think ordinary prudence requires it.” Whether ordinary ■ prudence requires the defendant to use such a precaution in the fulfillment of its duty to use its appliances in the public street so as to avoid all unnecessary danger to the public, is not a question of fact for a car driver to pass upon in the first instance and a trial court to finally determine; but a question of legal duty involving grave considerations of public policy, whose determination by a trial court can be reviewed by this court.

The precaution was a reasonable and simple one, necessary to avoid occasional accidents which might prove dangerous. It was the legal duty of the defendant to adopt such a precaution.