Budd v. Meriden Elec. R. Co.

• Decision Date: 15 June 1897
• Citation: 69 Conn. 272,37 A. 683
• Parties: BUDD v. MERIDEN ELECTRIC R. CO.
• Court: Connecticut Supreme Court

37 A. 683

69 Conn. 272

BUDD

v. MERIDEN ELECTRIC R. CO.

Supreme Court of Errors of Connecticut.

June 15, 1897.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Action by Daniel R. Budd against the Meriden Electric Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This action was brought by the plaintiff, as the administrator of the estate of Mizee E. Budd, claiming damages of the defendant for an injury to the said Mizee from which she died. The defendant filed a plea in abatement for defective service, as follows: "The defendant pleads in abatement because said writ was not otherwise served upon it than by the officer's leaving a copy of said writ and complaint in the hands of W. C. Gray, a resident director of said Merlden Electric Railroad Company, in the office of said company, within the town of Meriden, instead of with, or at the usual place of abode of, Thomas W. Crockett, of the town of Merlden, county of New Haven, and state of Connecticut, cashier of the defendant. And therefore the defendant prays judgment." The plaintiff demurred to the foregoing plea in abatement because "(1) there is no allegation therein that said W. C. Gray, upon whom said service was made, was not a person upon whom such service might have been made at the time of such service; (2) there is no allegation therein that at the time said writ was served the said Thomas W. Crockett was a resident of the state of Connecticut, or that at said time he was the cashier of the defendant."

The trial court found the following facts: "(2) The plaintiff was and is administrator, as alleged in said complaint; and the allegations of paragraphs 1, 2, 5, 6, and 7 are found true, except as may be modified by this finding. (3) And the court further finds that the deceased, Mizee E. Budd, at the time of her death, was a child and twenty-one months of age, and that she was on the 30th day of August, 1895, at about the hour of four o'clock in the afternoon, run over by one of the electric cars of the defendant corporation in the public highway, and died about three hours after such injuries were received, and in consequence thereof. (4) Said deceased had no brother or sister living at the time of her death, but a child was born to her parents within nine months after her death. Said child was born on May 27, 1896. (5) Said Mizee was of ordinary intelligence for a child of her age, and could walk, toddle, or run alone, but not faster than the ordinary walking pace of a woman. (6) The place where the accident happened was on Pratt street, and substantially at the time and place stated in the notice to the defendant corporation of such accident, and at a point about 120 feet north of the corner of Camp and Pratt streets in said city. There was no cross walk at the place of the accident. The nearest cross walk is at the intersection of Pratt and Camp streets. (7) At the corner of Pratt and Camp streets, Pratt street makes a turn towards the north, and the car tracks curve at that point; but such curve was not great enough to obstruct or impede the view of the motorman, and there was nothing to prevent, impede, or obstruct the motorman in charge of the car from a full and unobstructed view for a long distance before said curve was reached, and until the time of the accident, of the place and of the entire highway at the point where the accident took place. (8) Upon the afternoon when the child was killed, after dinner, the child was put to bed, and had an afternoon nap, waking about three o'clock, and thereupon was washed and dressed by her mother, and permitted to go into the back yard in the custody of her aunt Louisa, a girl of about twelve years of age— a competent person to take charge of such child. (9) This back yard was separated from Pratt street by an open and vacant lot of the depth of about 130 feet, and between the said back yard and said open and vacant lot was a board fence, the boards of said fence running horizontally or parallel with the level of the ground, and were about six inches apart, and the fence was between three and a quarter and four feet high. (10) There was a gate in said fence, which gate was securely fastened on the day in question. (11) Atone side of the gate, and some little distance therefrom, there was a small hole under the fence, through which the deceased escaped from said back yard, and passed across said vacant lot and down onto Pratt street, and said hole was obscured from ordinary observation by a growth of vegetation. The mother of the deceased knew of the existence of the hole, and also knew that the child had left the yard by crawling through this hole on one or two occasions before the day of the accident. (12) Directly before the child so escaped, she, with her aunt, was playing at the foot of said back yard; and the grandmother of the deceased child called her daughter, directing her to come into the house, and the aunt, obeying her mother, left the child and went into the house. (13) The mother of the child and the grandmother lived in the same yard, but in separate houses, and the mother did not know that Louisa had left her child alone. (14) The grandmother of the deceased child, when she called her daughter into the house, did not know that the child was playing in the garden under her care. (15) Directly after the child was so left alone, she escaped by passing under the fence as aforesaid, and by crossing said vacant lot. and passed directly onto Pratt street, and in a few minutes thereafter met her death by being run over by said electric car. (16) The exact distance on Pratt street from said open lot to the place where the child was killed did not appear, but it was from one-half to two-thirds the distance of one side of the same block. (17) The circumstances immediately surrounding the accident are as follows: The car was coming up Pratt street, and as it approached the turn at the corner of Camp and Pratt streets the motorman slowed down to pass around the curve, and, having passed onto the curve and partially around it, put on additional power to start the car up for its run through the straight, level part of Pratt street to the end of the track, further up Pratt street. (18) The said child was standing beside the east curb in the street, and, as the car proceeded up Pratt street, started to cross the street at nearly right angles, and, as she passed onto the point between the rails, was struck by the car, run over, and received injuries which caused her death. (19) A little before she passed onto the rails, and as the car was approaching, she raised her hands and uttered some exclamation. 20) Prom the time that the car was upon the curve until the car was within three or four feet of the child, the motorman was looking to one side, and back towards the rear of his car, and not in the direction that the car was going, and in consequence thereof did not observe the child until within three or four feet, and did not see the child until the child was upon the track, and until it was too late to do anything towards stopping the car, or preventing it from running over and killing the child. After seeing the child upon the track, the motorman did all in his power to stop the car, and it appeared that the car was equipped with proper appliances for that purpose. (21) The motorman, when he was near the curve, and before he started the car up by applying more power, saw the child standing in the street near the curb, as above stated. (22) There was a conductor upon said car, on the rear end thereof. (23) The defendant corporation and the motorman were negligent in not seeing the deceased and stopping the car before it ran over and killed the child. (24) Pratt street is a street in which usually and commonly many children are found playing and passing along and crossing the same, and this was well known to the motorman and to the defendant corporation. (25) There was no contributory negligence on the part of the deceased. (26) The defendant operates a single-track line on Pratt street, and at the time of the accident only one car ran thereon. (27) The car made regular trips from the square east of the steam-railroad tracks on Main street out to the end of the line on Pratt street and back again. The distance from said square out to the end of the line is about 5,000 feet. (28) The car was due to run to the end of its route in seven and one-half minutes from said square. (29) The car was not equipped with any fender, or life saving or protecting apparatus. (30) A man guaru had been upon the car in front of the wheels, but, owing to some accident, had been either broken or taken off. (31) The appliances for protecting life by the use of fenders and man guards then in use were of some, but not of very great, utility; but no attempt on the part of the defendant had been made, by the use of fenders or man guards, to protect life, or persons upon the street from injury. (32) The time and place of the accident, and the nature of the injuries inflicted, are accurately stated in the complaint, except as modified in this finding. (33) The child suffered a severe shock by said injuries, and, although suffering pain, did not suffer very greatly, but died from the effects of shock and the injuries inflicted upon her. (34) The child was conscious, and called for her mother, and otherwise exhibited intelligence and consciousness from the time of the accident until shortly before her death."

The following notice was given the defendant corporation: "To the Meriden Electric Railroad Company, a Railway Corporation Operating an Electric Railroad Running through Pratt Street, in the Town of Meriden, Connecticut: Please take notice that Daniel R. Budd, of said Meriden, administrator of. the estate of Mizee E. Budd, deceased, claims damages against said company for injuries inflicted upon the person of the said Mizee E. Budd, caused by the negligence of said corporation...