Broschart v. Tuttle

• Decision Date: 15 April 1890
• Citation: 21 A. 925,59 Conn. 1
• Parties: BROSCHART v. TUTTLE.
• Court: Connecticut Supreme Court

21 A. 925

59 Conn. 1

BROSCHART

v. TUTTLE.

Supreme Court of Errors of Connecticut.

April 15, 1890.

Appeal from superior court, New Haven county; Andrews, Judge.

L. Harrison and E. P. Arvine, for plaintiff.

W. C. Case and L. N. Blydenburgh, for defendant.

LOOMIS, J. This is an action to recover damages for the loss of a horse, caused by the alleged negligence of the defendant in so driving and managing his horse and sleigh as to come into collision with the plaintiff's horse and sleigh, while the parties were driving in opposite directions along a street in the city of New Haven. The case was tried to the jury, and resulted in a verdict of $700 in favor of the plaintiff, and thereupon the plaintiff filed a motion that he be awarded treble damages, pursuant to the statute, which was overruled by the court. Both parties have appealed to this court,—the plaintiff on account of the denial of his motion for treble damages, and the defendant on account of alleged errors in the charge to the jury and in the rulings of the court as to the admission of evidence. The statute upon which the plaintiff bases his claim for treble damages provides as follows: "Sec. 2689. When the drivers of any vehicles for the conveyance of persons shall meet each other in the public highway each shall turn to the right, and slacken his pace, so as to give half the traveled path, if practicable, and a fair and equal opportunity to pass to the other. Sec. 2690. Every driver of any such vehicle who shall, by neglecting to conform to the preceding section, drive against another vehicle and injure its owner, or any person in it, or the property of any person, * * * shall pay to the party injured treble damages." Whether, in order to recover the extraordinary damages given by the statute, it is necessary to refer to it specifically in the complaint, we will not determine, but it is conceded to be necessary to state such facts in the complaint as will clearly bring the defendant within the provisions of the statute. The plaintiff may have an election between his remedy at common law and the one given by statute, but the court has no election, and can only render such judgment in damages as the record calls for. In order, therefore, to require the court to threefold the damages it must appear that the verdict was necessarily founded upon a violation of the statute on the part of the defendant. This does not appear. The complaint does not allege that when the teams of the plaintiff and defendant were about to meet in the public highway the defendant failed to turn to the right and slacken his pace, nor that it was practicable for him to do so, nor that the defendant failed to give the plaintiff a fair and equal opportunity to pass, nor that he drove against the plaintiff's horse or vehicle on account of his failure to do these acts. The fifth and sixth paragraphs of the complaint, which were traversed, set forth the principal actionable facts. The fifth avers "that the defendant's horse was badly broken, untrained, balky, and subject to sudden starts of more or less unmanageable action; all of which the defendant well knew before he drove upon said highway that day." It may be that in these facts alone the negligence which occasioned the injury consisted, rather than in the things which the statute mentions. This is not a matter of mere speculation, for it appears from the finding that "the plaintiff offered evidence to prove, and claimed that he had proved, that the horse of the defendant was a vicious, unmanageable, and balky horse, which the defendant well knew, and that it was so improperly hitched to the sleigh as in traveling to strike the runner with one or both of the hind hoofs, thereby causing it to take fright and become difficult to control; that when the defendant first undertook to start from the Boulevard House his horse balked, and balked for a considerable time, and that while so balking the defendant was advised by the hostler of the Boulevard House to go home by way of Shelton avenue, where there was no crowd, and no number of teams passing, and that said hostler offered to take his horse for him out upon said avenue, and that the defendant could and ought to have gone home that way, but that in fact the defendant refused to go that way, and persisted in driving up the boulevard, where there was a large crowd on the sides of the street and many teams passing to and fro, and that, when finally the horse of the defendant did start, it bucked and jumped and pursued a zigzag course up the avenue, and was not controlled by its driver up to the time of the accident." The sixth paragraph of the complaint avers that "when the plaintiff and defendant were nearly opposite each other the defendant carelessly and negligently drove, or permitted his horse to go, across the highway, and to strike violently against the mare of the plaintiff." It would seem from this allegation that the defendant had already turned to or was on the opposite side of the highway from the plaintiff, and that it might well have been one of those "sudden starts of more or less unmanageable action," just set forth, that caused the strange movement towards the plaintiff, and the consequent collision.

If this were the proper case for the application of the statute, we see no objection to the mode of proceeding adopted by the plaintiff. Indeed, we think the practice is in such cases for the jury to find such damages as they think proper, and then the court enhances the amount in its judgment to meet the statutory requirements. Hart v. Brown, 2 Root, 301; Brewster v. Link, 28 Mo. 147; Lobdell v. Inhabitants of New Bedford, 1 Mass. 153; Swift v. Applebone 23 Mich. 252; Wynne v. Middleton, 1 Wils. 126.

The defendant's appeal is based upon several assignments of error, but the important one relates to the effect upon the plaintiff's right to recover of his own violation of a city ordinance, which contributed, as the defendant claimed, directly to the injury. The question, and the manner in which it arose, appear from the finding as follows: In connection with the claim that the place of the accident was within the city limits and was in a public highway of the city the defendant further claimed that the view of both the plaintiff and defendant was so obstructed as to render it impossible to see the teams as they were approaching each other in time to avoid the collision by the exercise of ordinary care, and that up to the instant of the accident the plaintiff had been and was driving at the speed of at least 15 miles per hour; and the defendant put in evidence an ordinance of the city of New Haven, in force at the time of the accident, to-wit: "No owner or person having for the time being the care or use of any horse or other beast of burden, carriage, or draft, shall ride, drive, or permit the same to go at a faster rate than an ordinary trot, or six miles an hour, in any street in said city." Charter and Ordinances of the City of New Haven, 1883. p. 122, §58. And he claimed that the law is so that if the jury should find that the plaintiff was not following this ordinance at the time of the accident, such unlawful act, if it directly contributed to the plaintiff's injury, was a conclusive bar to the plain tiff's recovery in this action, and not merely evidence of contributory negligence. This request was not complied with by the court, but the charge to the jury on this point was as follows: "If you find that the ordinance was in fact violated, and that its violation entered into the accident which you are now considering as a cause or one of its causes, you may take it into consideration as one of the circumstances to be considered by you in passing upon the question of whether the defendant was negligent, and in passing upon the question of whether the plaintiff himself contributed by his own negligence or want of care to the injury. I say it is one of the circumstances which may be taken into consideration by the jury in order to determine whether or not the defendant was negligent, and to determine whether or not the plaintiff contributed by his want of care to his own injury. Even if the plaintiff was violating the ordinance in the way that I have mentioned, in my judgment it does not necessarily show that he was guilty of negligence in such a way as to deprive him of the right to recover. I think it is not conclusive. It is one of the facts which you are to consider; and, after taking all the facts together, if you find that the plaintiff did not contribute to his own damage, he is entitled to recover if he makes out the other parts of the case to your satisfaction, notwithstanding the ordinance." Then in another connection the court, recurring to the same question, told the jury again: "But, gentlemen, driving on the right-hand side or the left-hand side of the center line is not, in my judgment, a conclusive circumstance either way. I don't think that is conclusive. I think it is one of the facts which enter into the case substantially in the same way as this ordinance enters into it; that is, in an analogous way. Being on the left-hand side of the middle line might be evidence of negligence, or the circumstances might be such that it was not negligence. Driving faster than the ordinance permits might be negligence, or the circumstances might be such that it would not be any negligence at all; or at least, not such negligence all to prevent a party from recovery; or it might be such negligence as would make a party liable. But it is for you to say, gentlemen. These are the circumstances, all of which go into the case, and upon the summing up of them all you are to say whether the defendant was negligent or not, and also whether the plaintiff was so or not." And again, as the judge was about to conclude his charge, a juror inquired whether the plaintiff incurred any responsibility in getting up the trot. The court thereupon added: "I think the question...