Barber v. Manchester

• Decision Date: 04 April 1900
• Citation: 45 A. 1014,72 Conn. 675
• Court: Connecticut Supreme Court
• Parties: BARBER v. MANCHESTER et al.

45 A. 1014

72 Conn. 675

BARBER

v. MANCHESTER et al.

Supreme Court of Errors of Connecticut.

April 4, 1900.

Appeal from superior court, Litchfield county Milton A. Shumway, Judge.

Action by Caroline E. Barber against Edward Manchester and others. Prom a judgment for defendants, plaintiff appeals. Affirmed.

The court found: That on the day in question the plaintiff, Caroline E. Barber, was riding, as an invited guest, in a carriage, in company with her daughter and granddaughter, along a highway in the borough of Winsted, used for travel about the same as the average town road, outside said borough, and one of the direct roads to the town of Colebrook. That the defendants were engaged in cutting corn for ensilage to fill a silo upon their farm, situated in said borough, near the highway above named, with a machine called an "ensilage cutter," the power for driving which was furnished by a small, portable steam engine. The engine was about five-horse power, and with the boiler about 2 feet square and about 3 feet high. The smokestack extended about 6 feet above the engine and boiler. The steam was exhausted into the smokestack. The engine was nearly noiseless when in motion. A carrier, which caught the ensilage and conveyed it into the silo, was attached to the cutter, consisting of an endless chain, with buckets or cleats about 1 foot apart; the whole revolving while the machine was in motion. The carrier was about 14 feet in length, and, when the upper end was put into the opening in the silo, was Inclined at an angle of between 45° and 60°. The power from the engine was communicated to the cutter through a belt about 20 feet in length. The engine, belt, cutter, and carrier were about 30 feet in length, and occupied that space upon the ground. The cutter and carrier made some noise when in motion, but no more than was necessary for such a machine. The engine and cutter were upon land which had formerly been, with the defendants' other land, inclosed from the highway by a fence. The engine was from 15 feet 3 inches to 17 feet distant from the nearest wheel track in the highway; the other machinery, further away from the highway. The defendant had used the same engine, cutter, and appliances, in substantially the same place, for the same purpose, for three successive years before the day named, and for a period of four to six days in each year. There was no evidence that any other ensilage cutter was or had been used in the borough of Winsted at any other time or place. The engine and machinery were exposed to view of persons passing along the highway for some distance. The view of the machinery from the south was obstructed at the time the plaintiff approached the place by the cornstalks which had been placed at the machine to be cut. The plaintiff approached from the south, riding in the wagon with her daughter; and, when they were at a distance of about 50 feet from the spot where the engine was standing and in operation, the horse, driven by the daughter, suddenly bolted, turned around in the road, the wagon was nearly if not entirely overturned, the occupants of the wagon were thrown upon the ground, and the horse ran back in the direction from which they were driving. The plaintiff's injuries were substantially as described in the complaint. It did not appear that the plaintiff or her daughter noticed any unusual noise before the horse bolted, but there was no evidence of any cause for the horse to bolt, other than the proximity of the engine and machinery, and the court found that the horse was startled by the noise therefrom. The horse was one of ordinary gentleness, though accustomed to shy at unusual sights and sounds. The driver was driving slowly, but because of the sudden and unexpected starting of the horse, not having it well in hand, she was unable to control it before she was thrown out. There was no sign to warn approaching teams of the presence of the machine. The court found that the engine, belt, cutter, and carrier, and other appliances in use with them, were not objects calculated to frighten horses of ordinary gentleness, and that there was no legal duty on the part of the defendants which they failed to perform, or which they improperly performed; that ordinary prudence and foresight on the part of the defendants did not, under all the circumstances, require them to use any device or take any precaution to prevent horses from being frightened by said engine and machinery; that there was no negligence on the part of the defendants and no negligence on the part of the plaintiff, Mrs. Barber.

One Beach, having testified, as a witness for defendants, that he was a farmer, and lived in the town of Winchester; that he had seen the ensilage cutter, and had worked on it at Manchester's and away from there,— was asked whether, in his opinion, the ensilage machine and engine, running, would be an object to frighten horses of ordinary gentleness. The plaintiff objected to this question on the ground that the witness was not qualified. The court overruled the objection. It subsequently appeared on cross-examination that the witness had not seen the ensilage cutter in operation at Manchester's place with an engine, but no other objection was made to the testimony in chief, and there was no other ruling thereon. Horace W. White, a witness for defendants, having testified that he was a farmer, and lived in Colebrook, and had seen the ensilage machine in operation at the Manchesters' the year they built their silo; that he owned a horse, and had driven horses all his life; that he had seen the engine running,—was asked, "How about the noise of the engine?" To this question the plaintiff objected on the ground that it was not brought near the time of the accident. Defendants' counsel stated that he should offer evidence to show that it was the same machine and engine, and that it had been used for three successive years in the same place, and such evidence was subsequently offered. The objection of the plaintiff was overruled. The witness was then asked: "What would you say as to the engine, when in operation, frightening horses of ordinary gentleness?" To this question the plaintiff objected on the same ground, and the objection was overruled. Dr. Drake, having testified as a witness for defendants that he had driven horses but little for 25 years; that he was at the Manchesters, to call upon Edward Manchester, and saw the engine and cutter in operation, and observed its location, and noticed that the engine made little noise; that he had no horse that day, but walked to the place, that the only horses he saw about the engine and cutter were drawing the corn to the machine at the time,—was asked whether the engine itself, exclusive of the ensilage machine, in his opinion, would frighten horses of ordinary gentleness. The plaintiff objected to this question on the ground that the witness had known but very little about horses for the last 25 years, and there was no foundation for his opinion. The objection was overruled. The defendants offered in evidence in chief the deposition of one Edwin Sheffer. The time specified in the notice for taking said deposition was agreed upon between the parties before the acceptance of service thereof. The notice stated "that the depositions of sundry witnesses, to be used on the trial of the above-entitled action, would be taken by the defendants therein on the 3d day of June, 1899, at 10 o'clock in the forenoon, at the office of Aldrich, Winslow & Worcester, in the Second National Bank Building, in Aurora, county of Kane, and state of Illinois, before some proper authority, and at such times and places as such authority should fix by adjournment." To the admission of such deposition the plaintiff objected upon the ground that it contained neither the names of the witnesses to be examined, nor of the authority before whom the same was to be taken. "Due and legal service" of said notice was accepted in writing. The court overruled the objections, and admitted the deposition.

The plaintiff claimed, in substance, as matters of law: First, that if the horse behind which the plaintiff was riding was a horse of ordinary gentleness, and was in fact frightened at the engine and machinery erected by the defendants, or at the noise caused thereby, and in consequence of such fright ran away, injuring the plaintiff, without negligence on her part, the defendants were liable; second, that if the horse behind which the plaintiff was riding was a horse of ordinary gentleness, and did in fact become frightened at said engine and machinery, and the noise caused thereby, resulting in injury to the plaintiff, without negligence on her part, then the opinion evidence of the witnesses called by the defendants to prove that said engine and machinery were not objects calculated to frighten horses of ordinary gentleness should not, and could not, as a matter of law, overweigh the said facts, and relieve the defendants of liability, but that said defendants should be held liable for such injury; third, that the law imposed some duty upon the defendants to notify the traveling public upon said highway of the presence of said machinery, and...