Mulligan v. City of New Britain

69 Conn. 96 | Conn. | 1897

Baldwin, J.

The finding supports the complaint, for the reasons given in the memorandum of decision of the Superior Court.

The second of the defendant’s claims was properly overruled as presenting no question of law. It was found that the plaintiff exercised what, under the circumstances, was reasonable care, and there is nothing to indicate that any inadequate standard of duty was applied. His knowledge that the horse was afraid of a steam road-roller undoubtedly imposed upon him an obligation to exercise more care than it would be reasonable to expect from ordinary drivers of ordinary horses. But it was reasonable to require from him this extraordinary care, simply because nothing less, under the circumstances, would be reasonable care. All the circumstances were before the trial court, and it is to be presumed that due weight was given to them in determining whether in fact the plaintiff used reasonable care. It would not have been reasonable, unless it were extraordinary, and the finding that it was reasonable necessarily imports that it was extraordinary.

But in the ruling upon the fifth claim of the defendant, there was error. For the grounds of its rejection the Superior Court refers to the memorandum of decision. This shows that the trial judge regarded Main street as practically divided by the street railway tracks into two highways, and held that the danger sign placed on the westerly side of the tracks was “ no warning at all ” to travelers on the street upon the easterly side of the tracks. Had, he finds, a similar sign been placed on this easterly side, it “ would have been a sufficient warning or notice to persons traveling upon said easterly highway.” It is evident that the case turned, in his mind, on this practical division of Main street into two different highways, for each of which a separate warning or sign was deemed necessary. Ho warning or sign, it is found, was placed on any part of Main street, east of the car tracks, to give'notice to travelers thereon that this part of the street was closed or that the steam roller was upon the opposite side, and public travel by teams on the' street could have been entirely stopped for the time, without serious public inconvenience.

Upon the condition of facts appearing by the record, the claim in question was correct in law, and should have been distinctly and fully sustained. The city was not reduced to the dilemma either of closing the street upon both sides of the car tracks by actual barriers, or of placing a second sign on the east side, to indicate that the street was closed. The sign which it did set up was placed as near the middle of the street as it well could be, in view of the ordinary overhang of a street car, bn each side of the rails. Main street could not be regarded for any purpose as two highways, one of which was properly guarded and the other not. It was an entirety, and the onty question was whether, if all travel were not excluded from it by actual barriers, a sign on one side of the tracks could be a reasonable warning to. those passing into or over the road on the other side. The trial court held, in effect, that it could not be; whereas the fact that the railway naturally divided the course of ordinary travel, was simply one circumstance to be considered with all the others, in determining whether a warning set on the west side was a sufficient indication of danger to those approaching on the other. Rowell v. Stamford Street R. R. Co., 64 Conn. 376.

The fourth claim of the defendant, on the other hand, for the same reasons, was properly overruled. This assumed that the sign set up was, as matter of law, a sufficient notice that the entire street was closed, whereas it was only one out of many facts to be considered in determining whether the plaintiff was duly warned of the danger before him, and whether he exejcised due care in driving upon the street.

By the other assignments of error, it is claimed that the facts found do not justify the conclusions of the trial court as to the negligence of the defendant and the care of the plaintiff. It is unnecessary to inquire whether any questions of law are thus presented, since a new trial must be'ordered on another ground.

There is error in the judgment appealed from.

In this opinion the other judges concurred.