Donovan v. Hartford St. Ry. Co.

• Decision Date: 01 December 1894
• Citation: 32 A. 350,65 Conn. 201
• Court: Connecticut Supreme Court
• Parties: DONOVAN v. HARTFORD ST. RY. CO.

32 A. 350

65 Conn. 201

DONOVAN

v. HARTFORD ST. RY. CO.

Supreme Court of Errors of Connecticut,

Dec. 1, 1894.

Appeal from city court of Hartford; Tainter, Judge.

Action by Mary J. Donovan against the Hartford Street-Railway Company for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff brings her action to recover for injuries from being run into by a car operated by defendant, and, for cause of action, alleges that while standing on the line of switch, at a street crossing, waiting for the car, which she had signaled, as it approached on the main track, to stop, the car, instead of continuing on the main track, was negligently turned onto the switch track, and struck her, while standing there. Plaintiff alleged in her complaint that defendant was "a common carrier of passengers by horse railroad."

Roger Welles and Uriah Case, for appellant.

Lucius F. Robinson, for appellee.

FENN, J. The plaintiffs first reason of appeal is that the "court erred in striking out of the original complaint, on the motion of the defendant, the allegation that the defendant was on October 25, 1890, a 'common carrier of passengers by horse railroad,' because it appears by other allegations in the complaint that at the time and place of the accident the relation of carrier and passenger existed between the parties, and that the plaintiff was injured while attempting to carry out, on her part, an implied contract between her and said car driver that she should take passage on said car at that point on said Asylum street where she was struck by said car, by its having been negligently turned from the track whereon it should have gone." The plaintiff, thus, it will be seen, bases her claim of error upon the concession of that which is manifestly true, namely, that the action of the court of which she complains could injure her only in case the other allegations of the complaint showed that the relation of carrier and passenger existed, at the time of the injury, between the defendant and herself. In other words, the statement that the defendant was a common carrier of passengers would be irrelevant, in a complaint for personal injury, unless such complaint contained other statements showing that the person injured sustained such a relation to such common carrier as conferred the right, by reason thereof, and in no other way, to recover damages for such injury in an action based on contract, for failure to perform an implied promise, or in tort, for the breach of an imposed duty. McElroy v. Railroad Co., 4 Cush. 400, 403; Eaton v. Railroad Co., 11 Allen, 500; Busw. Pers. Injur. § 5.

Our first inquiry, therefore, is, does the complaint in this case contain such allegations? The gist of the averments in reference to the injury is, not that the plaintiff was hurt, either while riding upon the car of the defendant, or while in the act of getting on or off of such car. It is not even alleged that at the time of the injury the plaintiff was upon premises lawfully in the occupation or control of the defendant; but the statement is that the injury occurred while the plaintiff was at a safe distance from the track on which the car should go,—a place safe for the plaintiff, and convenient for her to get on board. It would seem from the complaint that the place where she awaited the car was the same from which she gave the signal that she desired to get on board,—a signal which, we are asked to infer, was seen and recognized although the complaint fails to aver that fact Again, the injury is not alleged to have been received by reason of the failure of the defendant's servants to acknowledge or respond to, or to comply with, the signal of the plaintiff, nor that they failed to use proper endeavors to stop, or in fact to stop, as soon as they should have done, in order to receive the plaintiff on board, at the place desired by her; but the allegation is that the car, while going, was so carelessly and negligently managed and directed as to turn from the track where it should have gone, and run against the plaintiff. Now, it is manifest that here is no allegation of a cause of action growing out of the relation of carrier and passenger, in express terms, and according to the rules of pleading, which require direct statements, and exclude those by way of argument or inference merely, which demand the averment of ultimate and issuable, not of probative or evidential, facts. While, therefore, what the plaintiff's counsel say in their brief, referring to the Connecticut practice act (pages 57-59), Is correct, namely, that "the forms adapted to suits of this character all contain the allegation that the defendant was a common carrier," it is equally true that they all contain, also, other allegations making such averment relevant, showing a contract, undertaking, or duty, or a liability of the defendant to the plaintiff, growing out of the relation of the parties, which is here utterly wanting, so far as any direct or positive statement is concerned. But, more than this, the facts stated in this complaint are not such as even indirectly, and by way of evidence or inference, tend to Indicate, either the existence of the relation of carrier and passenger between the parties, or, if we were to assume such relation, that the cause of action was in any way founded upon it The negligence relied on was such as might just as well arise in any case where two persons were using the public street, each lawfully, but each independent of the other; and of course, in any such case, it would not matter that one of such persons was a common carrier. Even If it could be held—and no case, we think, can be found anywhere that would be a precedent for the ruling—that the defendant was under a special duty, imposed upon it by law, to stop its car so as to safely receive the plaintiff as a passenger, there is, as we have seen, nothing in the complaint adapted to recovery for a breach of such duty. It was not in fact claimed that any injury was so received, but instead it was claimed, in argument, that if the car had stopped before entering upon the switch, and before reaching the place where it would be necessary, in order to have taken the plaintiff on board, the deflection might have been prevented. Evidence, therefore, of an injury by failure to stop to allow the plaintiff to get on board, would not have been admissible. Shepard v. Railroad Co., 45 Conn. 54. "Under the practice act the right to recover rests upon, and is limited by, the facts alleged in the complaint." Loomis, J., in Powers v. Mulvey, 51 Conn. 432. But without further discussion of this matter, it must, we think, be evident that the ruling of the court could in no way have injured the plaintiff, provided, notwithstanding such ruling, the facts as to the situation of the parties were fully found, as they appear and are conceded to be, and that such facts show that such relation of carrier and passenger did not exist at the time when the plaintiff was struck by the car. We think they do so show, for while, perhaps, more favorable to the plaintiff's contention on this point than the allegations of the complaint, since it appeared in evidence that the driver did see, and responded to, the plaintiff's signal; that he expected to stop for her to get on board; and that she advanced upon the crosswalk for that purpose, —such facts are not sufficient to establish the relation. Creamer v. Railway Co., 156 Mass. 320, 31 N. E. 391; Piatt v. Railroad Co., 2 Hun, 124; Booth, Street Railways, § 326. A common carrier is bound to exercise a high degree of care towards those who have put themselves under his care as passengers, but not until they have thus put themselves under his care. Up to that time, although they may have contracted with him for their future transportation, he owes no more care to them than to any third party. His special duty begins when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of passenger to carrier is assumed. We therefore think the plaintiff was not injured by the action of the court in this regard. Indeed, upon the facts alleged and shown, the court was bound, without this averment (therefore unnecessary, by the rules of both common-law and code pleading), to take judicial notice that the defendant was a common carrier of passengers, if such fact was relevant. 5 Sp. Laws Conn. pp. 306, 492; Gen. St. § 1087.

The second reason of appeal is that the court erred in not holding, upon the facts found, that the defendant was guilty of negligence in not avoiding the deflection of its car from its Asylum street track to and upon its branch track, which deflection caused the injury to the plaintiff. We think it clear that whether there was negligence in this respect must under the exceptional circumstances of the case, be regarded as a question which can be determined by no standard save that of the conduct of a reasonable man of ordinary prudence under like circumstances; that is to say, the law can apply no precise measure or rule, and therefore the inquiry is one of fact in regard to which the determination of the trial court is conclusive. Farrell v. Railroad Co., 60 Conn. 239, 21 Atl. 675, and 22 Atl. 544; Fritts v. Railroad Co., 62 Conn. 503, 26 Atl. 347; O'Neil v. Town of East Windsor, 63 Conn. 154, 27 Atl. 237.

The remaining reason of appeal alleges error in overruling the plaintiff's claims of law upon the facts found; restating thus, in effect, the ground of the previous reason, adding, however, the claim that, it being found that there was no contributory negligence on the part of the plaintiff, the proof of the accident was prima facie evidence of negligence on the part of the defendant, which was not rebutted by the facts of the case. We think the law is otherwise. Button v. Frink, 51 Conn. 342, 351; Lennon v. Bawitzer, 57 Conn. 583, 587, 19 Atl. 334.

There is no error in the judgment...