68 Conn. 345 | Conn. | 1896
This is an action by an administratrix to recover damages for an injury which caused the death of the intestate.
The amended complaint alleged that the intestate, Gilbert A. Sprague, was on September 24th, 1891, a brakeman in the employ of the defendant, and was then, lawfully and with due care and in the regular course of his employment, pro
The court upon a hearing after demurrer overruled, assessed full damages and rendered judgment accordingly.
From the detailed and careful finding of the trial court it appears that the injury complained of occurred in the manner and under the circumstances stated in the complaint. The engines of two railroad trains going in different directions on the defendant’s single track railroad, collided a little before 8 P. M., September 24th, 1891, at a point between Hawleyville and Danbury near Hobart’s siding, about one mile west from Hawleyville and five miles east from Danbury. The intestate was a brakeman on the east bound train, known as No. 700—a first-class freight train. This train was scheduled on the time-card in force at that time, to leave Danbury going east at 7:10 p. m., but left Danbury on that day at about 7:40 p. M., being" about thirty minutes behind time. The same train was scheduled to leave Hobart at 7:40 p. m'., to arrive at Hawleyville at 7:45 P. M., and to leave Hawleyville at 8:40 p. M. '
Train No. 28, a first-class passenger train, was also scheduled on the time-card to leave Danbury going east at 7:10 p. M., the same time at which No. 700 was scheduled to leave, but was behind time and left at about 7:25 p. M. A message was sent by a train dispatcher to the . conductor of train No. 700 at Danbury, substantially as follows: “If no room at Danbury go to Hobarts, ahead of train 28.” There was room however, and train No. 700 waited at Danbury till train No. 28 had left. Train No. 67 left Hawleyville upon the arrival there of train No. 28» Whether the fact of the sending of the above message to the conductor of train No. 700 was communicated to the conductor of train No. 67, did not appear from the testimony.
The time-table then in force for the government of employees upon said portion of the defendant’s railroad was, as appeared on its ■ face in each upper corner thereof, “ Timetable No. 48, to take effect Sunday, September 20th, 1891, at 12 o’clock noon, superseding time-table No. 47, dated
E. B. Conrad was employed by defendant as the conductor, and William L. Heeney as the engineer, of train No. 67. •At the time of leaving Háwleyville both the conductor and engineer of train No. 67 were on the engine. The engineer, Heeney, asked the conductor, Conrad, to look at the time-card to see what time train No. 700 left Danbury. Conrad
Conrad had never taken charge of any train on the defendant’s road till he took charge of train No. 67, on the day of the collision, and that was the first service he had ever performed for the defendant. Division-Superintendent R. B. Williams employed Conrad as conductor, about ten days prior to the day of the collision—it being his duty as superintendent to employ conductors and engineers on his division— under the following circumstances: About the 1st of September, the month of the collision, Williams wrote several letters to different superintendents, asking them to recommend to him some first-class single track freight conductors. He received a letter from John Babcock, train-master of the New York, Pennsylvania & Ohio Railroad, recommending Conrad as a first-class conductor. Conrad came to Williams also with a letter from Mr. Charles Howard, recommending him as a first-class conductor on a road in Ohio which Howard had operated. Williams gave Conrad some general examination, and gave him a letter to train-master Russ for further examination on time-card and rules. Russ gave him some kind of an examination, but of what character is not stated. The time-card at that time in force was one issued in May, not the one in force on September 24th. Conrad was given ten days to learn the road, and was then ordered to run train No. 67 on September 24th. Conrad had not in fact learned the road when he reported for duty, and engineer Heeney had to attend to certain duties of the conductor as well as his own. He did not know at what time train No. 700 was due to leave Danbury or Hobart. He was unfamiliar with the time-card, if indeed he had the proper one, with the application of the rules of the company, even if he had made any study of them or knew anjdhing about them, and with the defendant’s system of management of trains on that day, which was carried on partty by special orders, partly by messages, and partly upon the knowledge and judgment of conductors. He was entirely without any experience in the
Engineer Heeney had been in the employ of the defendant a year as engineer, and for several years earlier as a fireman. Under the sj^stem of the company its trains had no regular engineers, an engineer being assigned one day for one train and on another day for another train. Heeney had not run train No. 67 for a month before the day of the collision, and had run the train but few times altogether. He did not know the time at which train No. 700 was due to leave Dan-bury, and supposed that Conrad’s statement was correct. He followed the directions of the conductor, whom the defendant had placed in charge of the train. He was a competent engineer. There was no negligence on his part amounting to a want of ordinary care.
Upon these facts the findings of the court as to the negligence of the defendant, were: “The defendant company knew, or ought to have known, that he (Conrad) was thus incompetent. The superintendent and train-master did not exercise reasonable care in the examination, instruction and preparation of Conrad for his duties-. The defendant did not by its superintendent or train-master, or by anjr officer of the company, or by any provision whatever, exercise reasonable care in placing Conrad in charge of train No. 67, in view of the nature of his duties on that day. The superintendent and train-despatchers did not give Conrad special orders or proper messages to guide him in the movement of his train from Hawleyville, and failed to exercise reasonable care in this regard, in view of Conrad’s known inexperience and the condition of business and situation of trains on the road on that day. The defendant was guilty of negligence amounting to a want of reasonable care in not providing, in some way, for the special direction of Conrad under the circumstances disclosed by the evidence. The collision was due to the incompetency of conductor Conrad, and to the negligence and want of reasonable care of the defendant, its superintendent, train-master and despatchers, as above stated.”
The nine reasons of appeal assigned by the defendant pre
In reference to the first question : There is and can be no dispute as to the law that a master is bound to exercise reasonable care to provide for his servants a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers. For negligence in the performance of his duty in this respect, the master is liable. Equally so where the injury is produced by the combined negligence of himself and a fellow servant of the injured employee. There is and can be no dispute, also, that this was the rule or standard which the court recognized and sought to apply. The question was: Did the master in these respects exercise, as he was bound to do, such reasonable care, under the circumstances stated? These circumstances were exceptional, peculiar, and such apparently as to .call for the application of the often repeated and familiar utterance of this court, “ that reasonable care is care proportioned to the danger to be guarded against, and in dangerous situations means great care.” We think the record presents an instance of “ inferences or conclusions of the court below, based upon the special circumstances of the ease, where the only standard of duty is the indefinite and varying one of the conduct of a reasonable and prudent man under like circumstances, where therefore not only the extent of performance but also the measure of duty, must be ascertained as facts.” Dundon et al. v. N. Y., N. H. & H. R. R. Co., 67 Conn. 266, 269; Bunnell v. Berlin Iron Bridge Co., 66 Conn. 24.
But the defendant says in its brief: “It is evident that it would be absurd to leave to a petit jury the question whether
But the defendant, as we have seen, contends that the court below erred in this, that, as shown by the finding, it used the admission of the demurrer as substantive evidence against it. The matters in the finding especially relied upon by the
Applying the rule deducible from these decisions to the present ease, it appears to us from a careful reading of the entire finding of the trial court, in connection with those extracts from it which we have quoted under this head, that the position of such court was this: The plaintiff, not content with nominal damages, to which the action -in reference to the demurrer entitled her without evidence, went forward with evidence to prove substantial damages. The plaintiff having then rested, the defendant introduced evidence to meet the case which the plaintiff had made. . For that purpose it offered evidence to show that it was not negligent, and therefore not liable for these substantial damages, but merely for nominal damages, and for these only on account of its admission. The defendant, in the opinion of the trial court, failed to accomplish this purpose, and the case for substantial damages established upon evidence by the plaintiff, not having been overthrown by evidence from the defendant, stood. The defendant appealed, assigning this ruling of the trial court as a reason therefor. The court, in its finding upon such appeal—a most careful and detailed statement, as it appears to us—has stated the facts that did appear in evidence, and on which the defendant relied in support of its claim. We think that the natural and most reasonable explanation of such parts of the finding as stated what did not appear, was to avoid inferences unfair to the plaintiff, which might otherwise have arisen, and to give the clearest and most correct possible .statement of the case as it was pre- • sented upon the trial. Let us illustrate this: In the • court
The admission arising from a demurrer, or a default, is in no sense to be regarded as an acknowledgment, or used as evidence, or considered as equivalent to evidence, of liability on the part of a defendant for substantial damages; nor, indeed, that there were any such damages suffered, or if so, that they were in any way chargeable to the defendant. What the cases in this jurisdiction have held is, substantially, that when a plaintiff in an action of tort, standing upon default or upon demurrer overruled, has proved actual and substantial damages, resulting to him from the injury com
There is no error.
In this opinion the other judges concurred.