27 Conn. 393 | Conn. | 1858
In this case the plaintiff’seeks to recover the value of three oxen, destroyed, as he says, on the defendants’ railroad, by a locomotive carelessly and negligently conducted by the defendants’ servants and agents. The jury by their verdict have found the facts alleged in the declaration to be proved, and, which is essential to the plaintiff’s right of recovery, that there was no co-operating carelessness or negligence.on his part. If this be all that there is in the case, there can be no question that the verdict should stand, and that no new trial should be granted.
But the defendants insist that this is not all,—that the court has mistaken the law, and left the jury to adopt false rules in arriving at their conclusion. They say that the oxen were trespassing on the railroad, and that therefore the defendants’ agents were absolved, so far as these cattle were concerned, from the duty of exercising ordinary care and attention in the running of their train ; and under this view they requested the court to charge the jury, in the first place, that the oxen, being at large without a keeper, were to be presumed to have escaped from the plaintiff’s enclosure through his insufficient fence, which they claim is the same as if the oxen had been turned out upon the highway or left to wander without restraint, and so were unlawfully at large and were trespassers in going upon the railroad :—and in the second place, that the cattle being trespassers, the defendants’ agents were under no obligation to exercise ordinary care to avoid injuring them ;—and further, that if the cattle were wrongfully let out by a stranger, and were on the road even without the knowledge or actual fault of the plaintiff, there was, in the eye of the law, negligence and fault on his part which precludes his right to recover; upon the well settled doctrine that a man can not recover for damage caused by the negligence of another, unless he was free from negligence, himself. The defendants had an undoubted right to ask for these specific instructions, if they contain the true rule of
Is there then any presumption of law, as claimed by the defendants, that cattle found at large have escaped through an insufficient fence of the owner 1 We think there is not. Besides, in this instance, the state of the plaintiff’s fence, and the cause and circumstances of the escape of the cattle, were fully inquired into on the trial, and, upon the evidence, the jury have found the facts to be as claimed by the plaintiff—at least so far as this, that it was through no fault or neglect on his part that the cattle were on the railroad track. The defendants say that because the cattle were there, it puts the plaintiff of necessity in the wrong in the eye of the law, makes the cattle trespassers, unlawfully obstructing the road, and works a forfeiture of the right to demand the exercise of care on the part of the defendants in running their train of cars, even though from the want of such care the cattle should be run over and killed.
This presents a most grave question, both of law and of morality, but we think its solution attended with no serious difficulty. The defendants place their defense on the doctrine of the books, that where a plaintiff seeks to recover for the negligence of a defendant, it must appear that the neglij'genceof the plaintiff did not essentially contribute to the injury; a doctrine which has long been recognized as a sound one here, and elsewhere; indeed the law was so laid down in the judge’s charge in this instance. But to this general doctrine there are important qualifications, and this case is claimed by the plaintiff to present one of them; or rather, in this and kindred eases, it is said, and we think correctly, that there is an important distinction to be observed, and that great injustice would be done by the indiscriminate application of the rule of law to which we have referred.
Assuming it as true, then, that the cattle escaped and wandered upon the track through the misconduct of a stranger,
The great argument of the defendants is, that the railroad is their unqualified property, which they may occupy and use without restraint at. their pleasure, and when wrongfully hindered therein, may remove the hindrance in the manner most convenient for themselves ; that in this instance their train was moving with its accustomed speed only, and, if the plaintiff’s cattle happened to be run down by it, it was their fault to be so exposed, and that they were themselves under no obligation to exercise care to prevent the injury. This line of argument is to a certain extent reasonable and correct, but along with it, underlying the defendants’ conclusion, there is a radical and manifest error. Even if the premises assumed by the defendants are throughout correct, it by no means follows that an obstruction on the road, of the kind in question, may be ejected in any way most convenient to the
Let us suppose in this case, that instead of the plaintiff’s cattle, the plaintiff himself had been on the railroad track, and that he was too deaf to hear the noise of the train or the ordinary alarm given in such a case. This would certainly have been most culpable and inexcusable conduct on his part, but would it have absolved the defendants from the duty to exercise reasonable care if they saw the plaintiff, or with proper attention might have seen him ? Ought they not in that case to check the speed of the train ? May they run over him merely because he is on the track ? They may well suppose that he is deaf, or blind, or insane, or bewildered, and have no right, as we think, to continue their headway as if he was not there. If they are bound to ring their
There is yet another consideration which has a bearing on the question, which, according to some of the cases, is decisive against the present defense. We mean that the negligence of the plaintiff, if there has been any, was not the proximate cause of the accident. To be so it must have been simultaneous in its operation with that of the defendants, of the same kind, immediate, growing out of the same transaction, and not something distinct and independent, of a prior date, remotely related to the negligence of the defendants.
The question of proximate and remote negligence has generally arisen in cases of collision, where the conduct of the parties at the very moment, or the isolated transaction viewed by itself, is before the triers, who are called to judge upon the evidence with which party lies the fault of the collision. In such cases the rule of law is of easy application, while in other eases it is more difficult and unsatisfactory, and often requires a broader range of reasoning.
In the case of Davies v. Mann, 10 Mees. & Weis., 545, the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public highway; and at the time in question, the ass was grazing on the off side of a road, about eight rods wide, when the defendant’s wagon, with a team of three horses, coming down a slight descentran against the ass and knocked it down, and, the wheels passing over it, it was killed. The ass was fettered at the time, and the driver of the wagon was some little distance behind the horses. Erskine, J., told the jury, that though the act of the plaintiff in leaving the donkey in the highway, so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was the want of proper conduct on the part of the driver of
The same is held in the case of Trow v. The Vermont Central R. R. Co., 24 Verm., 494. The court there say: “ Where the negligence of the defendant is proximate, and that of the plaintiff remote, the action can then well be sustained, although the plaintiff is not entirely without fault. This seems now to be settled in England and in this country. Therefore if there be negligence on the part of the plaintiff, yet, if at the time when the injury was committed, it might have been avoided by the defendant in the exercise of reasonable care and diligence, an action will lie for the injury. So in this case, if the plaintiff were guilty of negligence or even of positive wrong in placing his horse in the highway, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of their train and engine; and if the injury arose from the want of that care they are liable.”
The same doctrine is held in the case of Kerwhacker v. Cleveland, Columbus & Cincinnati R. R. Co., 3 Ohio S. R., 172, and in that of Cleveland, Columbus & Cincinnati R. R. Co. v. Elliot, 4 id., 475. The language of the court in the latter case is:—“ Suffering domestic animals to run at large, by means whereof they stray upon an uninclosed railway track, where they are killed by a train, is not in general a proximate cause of the loss, and hence, although there may have been some negligence in the owner in permitting the animals to go at large, such negligence being only a remote cause of their death, it will not prevent his recovering from the railroad company the value of the animals, if the imme
We will not pursue the discussion of this question, but will proceed to adduce the authorities we have before us, in addition to the three just referred to, in support of the main doctrine of the case, which is presented in the earlier part of this opinion. The three cases already cited to the question of proximate and remote negligence, are clear and direct authorities to the second and main point in the case, but we proceed to mention several others.
In the case of the New Haven Steamboat and Transportation Company v. Vanderbilt, 16 Conn., 421, this court held it to be a principle of law, that while a party on the one hand shall not recover damages for an injury which he has brought on himself, neither shall he, on the other hand, be permitted to shield himself from responsibility for an injury which he has done, because the injured party was in the wrong, unless such wrong contributed to produce the injury; “and even then, (the court say) it would seem that the party setting up such defense is bound to use common and ordinary caution to be in the right:'
In Birge v. Gardner, 19 Conn., 507, a child, too young to exercise any discretion, by shaking a gate, which the owner had left carelessly standing on his own land, being a lane through which children were accustomed to pass and repass, pulled it over upon himself and thereby broke his leg; yet he recovered damages, though he was a trespasser. The court say in this case:—‘There is a class of cases, in which defendants have been holden responsible for their misconduct, although culpable acts of trespass by the plaintiffs produced the consequences; and the fact that the plaintiff was a trespasser in the act which produced the injury complained of, would not necessarily preclude him from a recovery against
The same was decided in the case of Lynch v. Nurdin, 1 A. & E., N. S., 35, which was an action for negligence committed by the defendant’s servant, in leaving his cart and horse standing for half an hour, in an open street, where the plaintiff, with other children, got into and about the cart, and teased the horse, until the horse moved forward, and with the cart ran over and greatly injured the plaintiff. Here, it will be observed, was a clear trespass on the part of the child.
It is said that these are peculiar cases, where no blame is attachable to the plaintiffs because of their age and incapacity ; but they were trespassers, and could have been sued as such, which is quite as much as can be alleged against the present plaintiff. But let us proceed.
In the case of Loomis v. Terry, 17 Wend., 496, the defendant was sued for keeping dogs accustomed to bite mankind, which attacked and bit the plaintiff’s son and servant, while bunting in the defendant’s woods. The defense was that the person injured was a trespasser and brought the evil upon himself. The court held that, though he was trespassing, he did not thereby forfeit all protection against vicious dogs, and that the defendant should only have used such force as he found necessary to remove the intruder. This, say the court, is the utmost remedy which the law allows by the act of the party injured. May a man, they continue, knowingly keep on his premises a ferocious dog, in such a way that he will worry ordinary trespassers in the day time? The rule, they proceed to say, is as laid down by Dallas, J., in the case of Deane v. Clayton, 7 Taunt., 519, that the owner of property
We have a remarkable case in our own reports, in which this conservative doctrine is sanctioned and illustrated. Johnson v. Patterson, 14 Conn., 1. The defendant, having for a long time been annoyed by the plaintiff’s fowls in his garden, notified him that he should scatter poisoned meal in his garden, and that the fowls would be exposed to be poisoned if he did not keep them at home. The plaintiff did not heed the threat, and the fowls, coming again into the garden, were poisoned by the meal and died. The owner sued and recovered their value. This court unanimously sustained the verdict as resting on sound principles of law and morality. They regarded the remedy as excessive, cruel and unnecessarily destructive ; they considered that the ordinary course of the law furnished an adequate and peaceful remedy, by a repetition of suits, if need be, until the trespasser would be constrained to desist from a repetition of the wrong. Otherwise, it was said, if one may poison his neighbor’s fowls with impunity he may shoot them, and if he may do this he may shoot his ox or his horse if it happen to stray into the adjoining lot. The celebrated case of Deane v. Clayton was examined by Sherman, J., in giving the opinion of the court, and ho pointedly disapproved of the views of Judges Dallas and Gibbs, who held that such a mode of protecting one’s game (viz. by spring guns and dog spikes,) was not excessive, cruel or unnecessarily destructive; and he agreed with the other two judges, Parke and Burro ugh, who held the contrary doctrine. And even the two first named judges said that they should agree with their brethren, if the defendant had been present, but, as he was not, and had given notice of the concealed dangers, they thought he might resort to these remedies, even though death might ensue. Now, so far as absence is material, (and it is held to be so in all the cases which justify a resort to deadly instruments for preventing a mere trespass,) it is a circumstance wanting in the present case. The defendants were present by their agents and ser
The same doctrine is maintained in Chaplin v. Hawes, 3 C. & P., 554, where Gibbs, Ch. J. remarks, “ If the plaintiff’s servant had such a clear space that he might easily have got away, then I think he would have been so much to blame as to prevent the plaintiff from recovering. .But on the sudden a man may not be sufficiently self-possessed to know in what way to decide, and, in such a case, I think the wrong doer is the party who is to be answerable for the mischief, though it might have been prevented by the other party’s acting differently.”
In the case of Bird v. Holbrook, 4 Bing., 628, a spring gun had been set secretly to prevent the repetition of theft, and the plaintiff', having climbed over the wall near the gun in pursuit of a stray fowl, was shot. The defendant was held liable in damages, although the plaintiff brought the injury upon himself by trespassing upon the defendant’s inclosure.
In the case of Vire v. Lord Cawdor, 11 East., 568, the plaintiff’s dog was shot by the defendant’s servant, because he was pursuing the defendant’s hare in the defendant’s close, and it was necessary to kill him in order to save the hare. Lord Ellenborough said:—“The question is, whether the plaintiff's dog incurred the penalty of death for running after a hare in another’s ground! And if there be any precedent of that sort, which outrages all reason and sense, it is of no authority to govern other cases.”
In the case of Raisin v. Mitchell & al., 9 C. & P., 613, the owner of a brig was sued for an injury done to a sloop. The jury having found a verdict for ¿£250, instead of ¿£500, the amount of injury proved, on being asked by the court how
So in the case of The Mayor of Colchester v. Brooke, 7 A. & E., N. S., 339, although the plaintiff was chargeable with wrong and negligence in placing and keeping the deposit of a bed of oysters in the channel of a navigable stream, the defendant was held not to be justifiable in running his vessel upon the deposit, greatly injuring the oysters, when there was room to pass in the stream without it, and the injury could have been avoided by the use of reasonable care and diligence. This is only carrying out the rule, that though a man do a lawful thing, yet if any damage thereby be done to another which he could reasonably and properly have avoided, he will be held liable, according to the maxim sic utere tuo ut alienum non luedas. See Vaughan v. Menlove, 3 Bing., N. C., 468, and Marriott v. Stanley, 1 Man. & Gr., 568. The same is decided in Norris v. Litchfield, 35 N. Hamp., 271, where the court expressly deny the claim that if the plaintiff was a wrong-doer he could maintain no action ?Wh ate ver, however prudent and careful he may have been. They recognize as the true doctrine what was said by Lord Ellen-borough in Butterfield v. Forrester, that “one’s being in fault will not dispense with another’s using ordinary care.”
In Dixon v. Bell, 5 M. & S., 198, the court held that great care must be used by a person having the custody and handling of dangerous implements, like loaded guns and powerful machinery, and that slight negligence in another person who
We need not further pursue this topic, and certainly we need not adduce more authorities to establish a doctrine which is so plain and reasonable. We will, however, refer again to the case of Kerwhacker v. Cleveland, Columbus and Cincinnati R. R. Co., 3 Ohio S. R. 172, for the purpose of remarking that the opinion of the court contains an elaborate, learned and conclusive argument upon all the points raised in the present case, and to commend it entire to every one who wishes to see all the law on this important subject, with the reasons on which it rests.
It must not be supposed that we have overlooked or slightly examined the numerous respectable authorities cited by the defendant’s counsel. Some of them, as we view them, only add strength and force to the views which we have expressed; some rest on principleswholly distinct from those involved in the doctrine which we maintain; while others, and especially the cases from the New York reports, if we understand them, are at variance, as we most fully believe, not only with our own law but with the common law of England.
We do not advise a new trial.
In this opinion the other judges concurred; except Sanford, J., who having tried the case in the superior court did not sit.
New-trial not advised.