46 A. 875 | Conn. | 1900
Lead Opinion
The plaintiff claimed to recover damages for an injury he had received by the negligence of the defendant while a passenger on one of its cars. The defendant suffered a default and there was a hearing in damages. The court found and held that the plaintiff was himself guilty of negligence which contributed to his injury, and rendered judgment for nominal damages only. The plaintiff appealed.
We assume that upon the hearing the plaintiff proved that he had received substantial damages. The default admitted his right, prima facie, to recover such damages; and unless the defendant made it appear by a fair preponderance of the evidence, that it was itself free from negligence, or that the plaintiff's own negligence contributed to the injury of which he complained, judgment should have been in favor of the plaintiff. The trial court has found and decides in both these respects against the plaintiff, and specifically, that it was his own contributory negligence "which was the cause of the injury complained of." In point of form that finding *141 is decisive of the case. In his present appeal the plaintiff insists that that decision is defective and void, for the reason that at the hearing there were erroneous rulings in respect to the admission of evidence, and that the judgment itself was a conclusion to which the court could not lawfully come upon the facts as they are found.
We have taken occasion to examine the finding only so far as it treats of the plaintiff's own negligence. In looking over the rulings on the evidence we do not find any error; clearly none to affect the question we are now considering.
The defendant is a corporation operating a street railway by electricity. A portion of its tracks near Belle Dock is laid along a causeway. At this part of its line the trolley poles,i. e., the poles that support the electric wires, are placed near the track. The plaintiff was on the day named in the complaint a passenger on the footboard of one of the defendant's cars at this part of the line, and was on the same side where the poles are placed. He leaned back far enough from the side of the car so that his head struck against one of the trolley poles and he received the injury for which the suit was brought. The finding shows that the plaintiff was familiar with the situation, was aware of the proximity of the poles to the track and of the risk attendant upon riding on the footboard. It is also found that the space between the cars and the poles is adequate for the safe carriage of passengers on the footboard in the exercise of reasonable care. That the plaintiff was on the footboard of the car must, on the finding as stated, be deemed not the cause of his injury, but only a condition.Smithwick v. Hall Upson Co.,
It seems to us that the judgment of the court is warranted by the facts, and that there is no error.
The finding fully and fairly presents every question of law raised by the plaintiff's appeal, and it is apparent that a certification of all the evidence could not affect any question in the case which this court can decide.
There is no error.
In this opinion the other judges concurred, except HAMERSLEY, J., who dissented.
Dissenting Opinion
The plaintiff claimed that the conduct of the defendant impliedly invited him to ride upon the footboard, and that the defendant thereby assumed, as to him, the duty of a common carrier to exercise the degree of care in transporting him proportioned to the increased danger to be apprehended from his position on the footboard. The trial court held that the conduct of the defendant as proved did not support the inference of such invitation, and refused to consider the claim of law based thereon. The facts, and all the facts, from which the inference claimed must he drawn, were settled by the court and stated in the finding of facts on which the judgment is founded. The evidence as to the conduct of the defendant in this respect has been exhausted in the facts already found. The inference of the judge from those facts is subject to the rules of law governing all judicial inference from admitted facts.
I think the court clearly erred in its inference. No conclusion from the facts found is legally permissible except the one claimed, i. e., the defendant accepted the plaintiff as a passenger to ride upon the footboard. The duty of the defendant to exercise the degree of care proportioned to the manifest danger of carrying passengers in that manner, *144 is beyond controversy. This error of the court necessarily entered into and vitiated its finding both as to negligence and contributory negligence. It is patent from the whole finding that the conclusions actually drawn are based upon the plainly erroneous conclusion as to the relation of common carrier and passenger. Moreover, it was culpable negligence in the defendant to knowingly assent to any passenger standing on the northerly footboard while crossing the causeway under the conditions of the construction of the defendant's railroad set forth in the finding.
A new trial should be ordered.