Housatonic Railroad v. Knowles

30 Conn. 313 | Conn. | 1862

Butler, J.

The verdict in this case is against the preponderance of the evidence, but not so manifestly as to bring the case within the rule approved by this court in Daley v. Norwich & Worcester R. R. Co., 26 Conn., 591.

The negligence of the defendant was gross, and if the case turned on that alone, so irresistibly is it proved, that we should not hesitate to say that the jury must have been under the influence of some mistake, misapprehension, or improper motive. There was a space fifty-nine rods in length of the railroad, accessible from a parallel highway the whole distance, and crossed by the highway at either end, upon which cattle would naturally stray, or be driven by passing people and teams. Cattle could not be safely trusted one momeñt upon any part of that highway, at or near the time for the passing of trains, without being under the immediate and instant control of a keeper or driver. Under such circumstances the cows should not haYe been permitted to pass on towards the railroad, while the boy who had them in charge waited at his brother’s for that brother’s cow to be milked. Because they were thus permitted to pass on without and beyond control, when there was a probability that they might get upon the track and at a time when a train was overdue, they did in fact stray upon it, and one of them was struck by the engine. No argument can avoid the irresistible logic of the admitted facts. The negligence was unquestionable and gross.

On the other hand, the peculiar character of the place, the more than ordinary danger of finding cattle there at that time of day, the waning of the twilight and the lateness of the train, all required more care on the part of the officers in charge of the train in approaching that place, than was requisite at other times, or at ordinary and direct road-crossings. Whether the requisite degree of care, under the circumstances, was or was not used by the plaintiffs’ agents, was an important issue and the evidence conflicting. The preponderance of the evidence was with the plaintiffs, and the verdict should have been the other way.

But, making allowance for the impressions as to the credibility of the witnesses from their appearance and manner, which the jury might properly get, we can not say that the preponderance was such as to evince that they must have rendered the verdict because they were unable to understand, or misapprehended, the law or the evidence; or because their minds were not open to conviction; or were influenced by partiality, prejudice or other improper motive.

A new trial must be denied.

In this opinion the other judges concurred; except Sanford and Dutton, Js., who did not sit, the former being interested, and the latter having been counsel in the case.