51 A. 550 (Conn. 1902), Nesbit v. Crosby

Citation:51 A. 550, 74 Conn. 554
Opinion Judge:PRENTICE, J. (after stating the facts).
Party Name:NESBIT v. CROSBY.
Attorney:Charles S. Hamilton, for appellant. Bernard E. Lynch and Edwin S. Thomas, for appellee.
Case Date:March 05, 1902
Court:Supreme Court of Connecticut
 
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Page 550

51 A. 550 (Conn. 1902)

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.

Page 551

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...

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