Nesbit v. Crosby

• Decision Date: 05 March 1902
• Citation: 74 Conn. 554,51 A. 550
• Court: Connecticut Supreme Court
• Parties: NESBIT v. CROSBY.

51 A. 550

74 Conn. 554

NESBIT

v. CROSBY.

Supreme Court of Errors of Connecticut.

March 5, 1902.

Appeal from court of common pleas, New Haven county; Leverett M. Hubbard, Judge.

Action by George G. Nesbit against Walter S. Crosby. From a judgment for defendant, plaintiff appeals. Affirmed.

The complaint alleged, in substance, that the plaintiff's team, while being driven in the nighttime, with due care, along Savin avenue, in New Haven, ran into the defendant's team, standing in the dark diagonally across the street, where it had been improperly left for a considerable time without any person in charge, and without light, signal, or other indication of danger, by reason of which collision, which was without the fault of the plaintiff or his servants, the plaintiff's horse and carriage were injured. The defendant's team, located as stated, was alleged to constitute a dangerous obstruction in the highway. The facts surrounding the collision were in dispute, and the allegations relating to the question of negligence controverted. The defendant, in addition to the general denial, filed a counterclaim claiming damages for the results of the plaintiff's negligence arising out of the same affair. Upon the trial the plaintiff's counsel, among other requests, asked the court in writing to instruct the jury as follows: "(1) This action is brought to recover damages by reason of the claimed negligence of the defendant in leaving, or causing to be left, a horse and wagon upon one of the public highways of the borough of West Haven, called 'Savin Avenue,' in such a position and under such circumstances as to be dangerous, and an obstruction to the highway at that place; and if the jury find that on the night in question the defendant left standing in the public highway known as 'Savin Avenue,' in the borough of West Haven, a horse and milk wagon, with a large number of milk bottles, so that the horse and wagon were diagonally across the street, and left in such a manner without any one in charge of it, and without any light thereon to warn travelers of the danger, it was an obstruction to the highway; and if, on account of its being there, the plaintiff's horse and wagon were injured while the plaintiff's team was being driven along the highway with reasonable care, the plaintiff is entitled to recover. (2) While, under some circumstances, a person may leave his horse and team in the highway for the purpose of making a temporary stop, yet it must always be done with that reasonable degree of care and prudence that men of ordinary prudence would use in regard to their own affairs; and where the highway is one that is much used, and there is a liability of frequent passing, and the team is left in an obscure or dark place, where there is less opportunity to observe it, it is the duty of the person thus leaving the team to exercise reasonable care and precaution to warn travelers of its presence either by leaving some person in charge of it or placing a warning light thereon, so that travelers may know of the presence of the obstruction in the highway. (3) While, under some circumstances, a person may leave a horse attached to a wagon in the public highway, and necessary for the purpose of transacting business, it should always be so placed as to obstruct the traveled path as little as possible; and to allow a horse and wagon to stand in a much-used public highway diagonally across the street, so that the hind wheels project past the center of the street, is a use of the highway which is not warranted by law and justifiable; and if the jury find that the horse and wagon were left in the highway, as is described by the plaintiff's witnesses, diagonally across the street, the head of the horse being at or near the gutter, with the hind wheels of the wagon out past the center of the traveled highway, then this act was a negligent and improper obstruction of the highway, and the plaintiff is entitled to recover if he used ordinary care himself." The finding contains the following respecting the rulings of the court upon the introduction of testimony: "(a) The plaintiff produced in chief Elbert Wilcox, one of the parties in charge of plaintiff's team, who testified on his direct examination to having been with the team on the night in question, driving down Savin avenue, and as to the circumstances of said collision. On cross-examination he was asked as to the time he took said team, the place he started from, and the route he had taken from New Haven to Savin avenue; and, further, on said cross-examination having testified that he had been in a place kept by one Henry McCabe, he was asked the following question: 'What does Henry McCabe do?' (Objected to as not material in this case. Admitted. Exception.) To which the witness replied that the said Henry McCabe kept a saloon. (b) Further, on cross-examination of said Wilcox, he, having testified that he did not see the lantern nor defendant's team before the collision occurred, was asked the following questions: 'Did yon say or hear anybody around there say that they thought that that lantern they saw was a bicycle lantern?' (Objected to. Admitted. Exception.) 'I do not remember.' 'You would not say it was not said, would you?' (Objected to as hearsay. Admitted. Exception.) 'I do not remember.' (c) And further, on cross-examination of said Wilcox, he, having testified on cross-examination that he telephoned for and requested one Dr. Kelly, a veterinary surgeon, immediately after the collision occurred, to go to West Haven for the purpose of treating his horse, and that he had received a bill for Dr. Kelly's services, was asked the following questions: 'And you have not paid it?' (Objected to. Admitted. Exception.) 'I have not paid for the use of the team there.' 'And if Mr. Crosby don't pay it you will have to pay it, won't you?' (Objected to. Admitted. Exception.) 'I shall feel obliged to make it good to him. I hired the team. It was in my possession.' (d) On the redirect examination said Wilcox was asked as follows: 'Now, you were asked if there was any other shade tree on other parts of this street up and down there. Any other shade tree that had a horse and wagon left standing directly under it?' (Objected to.) The Court: 'No such question or evidence.' (Ruled out. Exception.) (e) The plaintiff produced in chief one Revere as a witness, who on his direct examination had testified that on the night in question he was riding down Savin avenue in company with, but a little ahead of, another bicycle rider (Brummer), some half hour before the time of the collision by plaintiff's team with defendant's team, and that Brummer had run into the carriage of the defendant, which was diagonally across the street, as set forth in the finding; and asked him further on direct examination the following question: 'Now, was there anything to indicate that that carriage was there until you got onto it with your bicycle?' (Objected to. Ruled out. Exception.) Said Revere further testified on the direct examination that there were tracks of a wagon on said highway which would indicate that the wagon had come out of the driveway of defendant's premises, and partly turned into the street. On the cross-examination he was asked the following question: 'When you saw this wagon, it was not in such a position it could have come out of the driveway, could it?' (Objected to as not calling for where the wagon was. Admitted. Exception.) 'I would have to give an expert opinion if I answered it. I don't think I can.' (f) Said Revere, having testified on direct examination that after the collision of Brummer's bicycle with the defendant's carriage he had a conversation with a young man who was there, and had asked him who was owner of the team, was on cross-examination asked the following questions: 'I asked you if you didn't want to talk with one of the boys that had been in the road. What had you done,—had you done anything to him?' (Objected to as immaterial, irrelevant, and incompetent. Admitted. Exception.) 'Nothing at all.' 'Now, what did you say?' 'Who owns that team?' 'What did he say?' 'None of your business.' 'What did you say to that?' 'I want to know.' 'Go on, and tell the rest of it.' (Exception.) 'I want to know who owns this team. He says, "You will not know." So he kept arguing back and forth.' (g) Said Revere, on cross-examination having testified further that after the accident happened he had been arrested by Mr. Crosby for breach of the peace, was asked on redirect the following questions: 'Had you done anything to be arrested for?' (Objected to. Ruled out. Exception.) 'So far as you know, had you done anything for which you should have been arrested?' (Objected to. Ruled out Exception.) 'Had you not done anything that night to Mr. Crosby, or to any person there?* (Objected to. Admitted.) 'No act of violence; no.' (h) The defendant produced in chief as a witness one Palmer, who, upon his direct examination, testified that he lived across the street from defendant's house, and that at about nine o'clock on the evening of the accident he heard a horse go by, and some one shout, and that he went out onto the street and over to the place of the accident, and was asked further on direct examination the following questions: Q. 'What did you go there for?' (Objected to as not material. Admitted. Exception.) T heard a team,—a horse. I heard a noise,— horse going...