Carlson v. Connecticut Co.

• Decision Date: 22 December 1919
• Citation: 108 A. 531,94 Conn. 131
• Court: Connecticut Supreme Court
• Parties: CARLSON v. CONNECTICUT CO.

108 A. 531

94 Conn. 131

CARLSON v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

December 22, 1919

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Action by Ernest Carlson against the Connecticut Company. Judgment for plaintiff, and defendant appeals. Error, and new trial.

September 28, 1918, the plaintiff was injured by being run over by one of the defendant's trolley cars. He was at the time lying asleep by the side of the defendant's tracks, with one or both of his feet extending over one of the rails. As a result of his injuries both his feet had to be amputated just above the ankle.

The plaintiff lived with and was employed by one Reardon, who resided in South Windsor, and upon the main highway between Springfield and Hartford, along which the trolley line between those two cities runs. The point of injury was near the Company's station No. 28. The trolley line was here a single track, one laid along the east side of the traveled way, an improved road surfaced with Warrenite. Its westerly rail was some five or six feet east of the easterly edge of the Warrenite. The intervening space was not improved for public travel. On the outer, or easterly, side of the east rail was a strip of land within highway limits about nine feet in width. This strip was wholly unimproved and unused by travelers. Immediately east of the tracks and for a distance of some four or five feet, the ground was slightly lower than the surface of the ties upon which the rails were laid, and from that point rose gradually to the highway boundary. At that point the land was some two feet higher than were the tracks. The space easterly of the tracks was covered with a growth of uncut grass of varying length. The defendant claimed that this grass was so high that all of the plaintiff's body, except his feet, was concealed from view as he lay at the time he was injured; the plaintiff that it was not of sufficient height and character to hide the plaintiff as he lay in it. The time of the accident was about midnight, and the place in the open country where there were no street lights.

The plaintiff had left the home of his employer, which was near station No. 33, on the evening of the day in question to visit Hartford. He remained in the city until nearly 11 o'clock, and drank during that time, as he himself admitted, two glasses of beer and one of whisky. At 10:55 he boarded one of the defendant's cars to return to his home. At station No. 28, which is about one mile from his destination and a half mile south of the fare limit station which was No. 31, he, for some reason which he was unable to explain, left the car and started in the direction of his home on foot. From that time until he was run over by the car some one-half or three-quarters of an hour afterwards, he was not, as far as is known, seen by any one, and in the meantime no car passed the point of accident in either direction.

The car which occasioned the plaintiff's injuries was proceeding in a southerly direction toward Hartford. It was equipped with a powerful headlight, and was running at a speed variously estimated from 15 miles an hour upward. In the front vestibule of the car, in addition to the motorman, was a constable of the town of South Windsor in uniform. He was employed by and acting under the orders of the selectmen of the town to keep a lookout for persons or other obstructions which might be upon the trolley tracks at a late hour on Saturday nights. At that time there was in the town a large number of tobacco growers and a very large acreage of tobacco. This industry called to the town during the growing and harvesting season a large number of employé s more or less of whom were likely to be found upon the highway at a later hour on Saturday nights than at other times. This the defendant motorman well knew, as he did also the reason for the constable's presence on his car.

As the car approached and passed the spot where the plaintiff lay, neither the motorman nor the constable saw him. The motorman, however, felt a jar, which caused him to think that he had run over something. He brought the car to a stop as soon as possible, and requested the conductor to see what had happened. The latter's investigations having proved unsuccessful, the motorman reversed his power, and backed his car to and beyond the point where the plaintiff lay. When it had fully passed, the rays of the headlight revealed the presence of the injured plaintiff. The plaintiff claimed that the injury to his right leg was caused by the second passage of the car; the defendant, that both legs were injured when the car first passed.

The defendant claimed to have shown that the motorman was keeping a proper lookout ahead and giving proper attention to the performance of his duties, and that neither he nor the constable, who stood at his side, saw the plaintiff or any portion of his body before the car struck him, and that their failure to do so was due entirely to the concealed position in which the plaintiff lay.

The assignments of error, five in number, all challenge the correctness of portions of the court's charge as follows:

" (1) Now, as to the first of these assignments of negligence-that is, as to the inexperience of the men-it is of course the duty of the defendant to employ men fitted to perform their duties consistently with the general safety of the public. But to make any such assignment of negligence effective, it must not only appear by a fair preponderance of the evidence that the servants of the defendant were actually inexperienced men, but, further, that Carlson's injuries are directly chargeable to that inexperience.

" (2) I, of course, suggest to you that the law expects a high degree of care from one in charge of a powerful engine of this character, to preserve not only its own passengers but other travelers who may be abroad and in the neighborhood of the railroad tracks from injury. One in such a situation-that is, one in the situation of the motorman-is bound to keep strict watch of his road ahead, and to keep his car under control by maintaining

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