Cunningham v. Fair Haven & W. R. Co.

• Decision Date: 01 August 1899
• Citation: 72 Conn. 244,43 A. 1047
• Court: Connecticut Supreme Court
• Parties: CUNNINGHAM v. FAIR HAVEN & W. R. CO.

43 A. 1047

72 Conn. 244

CUNNINGHAM

v. FAIR HAVEN & W. R. CO.

Supreme Court of Errors of Connecticut.

Aug. 1, 1899.

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

Action by Emma Cunningham, administratrix, against the Fair Haven & Westville Railroad Company. From a judgment for plaintiff entered on a verdict, defendant appeals. Reversed.

The plaintiff is administratrix of the estate of Archie Cunningham, deceased. The defendant owns and operates a street railroad in the town of New Haven, running through Chapel street. The defendant is required by its charter "to keep that portion of the streets and avenues over which their road or way shall be laid down, with a space of two feet on each side of their track or way, in good and sufficient repair." On June 22, 1898, the said Archie Cunningham was driving a pair of horses attached to a heavy truck with a high seat along the southerly side of Chapel street and in an easterly direction. In turning his team to the left diagonally across the street, and diagonally to the rails of the defendant's tracks, for the purpose of crossing to the other side of the street, the left forward wheel of the truck came in contact with the northerly rail of the defendant's east-bound track, and caught and slid along on said rail before passing over it. By reason of the sudden jolt thus caused, he was thrown from his seat to the ground in front of the wheel, which passed over his head, and caused his death. The accident occurred at a point in Chapel street about midway between Blatchley avenue and Poplar street (which are 569 feet apart), and nearly opposite the center of a certain vacant lot on the northerly side of Chapel street. Upon the trial to the jury the plaintiff offered evidence to prove, and claimed to have proved, that the road at the place of accident was out of repair by reason of the fact that deep ruts had been made along the side of the defendant's rails, thereby causing said rails to project several inches above the surface of the road immediately adjoining the same; and that the wheel of the plaintiff's truck caught and slid along the rail because such rail at that point projected above the ground several Inches. The defendant offered evidence to prove, and claimed to have proved, that at the place and time of his accident the roadway was of crushed stone; that the only depression in the roadbed where the wheel of the plaintiff's truck struck the rail as aforesaid was a depression of from 1 to 1 1/8 inches on the Inside thereof, which was necessary to accommodate the flange of the car wheels; that, aside from said necessary depression, the roadbed at the place of accident was substantially flush with the rails, and hardened by crushed stone, and in good condition; and that at the time of the accident the said Cunningham was not in the exercise of due care. The plaintiff produced as a witness one Louise C. Willman, and asked her as to the condition of the road from Blatchley avenue to Poplar street The defendant objected, on the ground that the witness' attention should be directed to the spot where the accident took place. The question was admitted, and the defendant excepted. In the charge the court instructed the jury that they must find the road to have been unsafe for travel at the place when the accident occurred, and that the condition of the rails at any other place was not material, if the unsafe condition at other places was not the cause of the injury. The plaintiff also produced as a witness one Joseph Euhrick, and asked him as to the condition of the road for some time prior to the accident The defendant objected. The court overruled the objection, and defendant excepted. The plaintiff also produced as a witness one John McAvoy, and asked him to state the condition of the road at the point in question at any time within a year. The defendant objected, because the question did not refer to a time either before or after the accident. The court admitted the question, and the defendant excepted. The witness was then asked if he knew the condition within a year before the accident, and he answered "Yes." The plaintiff also produced as a witness one Peter J. Webber, and asked him the following question: "What was the condition of the track or tracks along by and near where the accident occurred, and at the point where the accident occurred,—all along there?" The defendant objected, because the inquiry included several questions, and the witness should first be asked where the accident did occur. The court admitted the question, and the defendant excepted. The plaintiff produced and offered in evidence a photograph of a section of Chapel street between Blatchley avenue and Poplar street, including the place of the accident, claimed to have been taken on the 1st or 2d day of July, 1898. For the purpose of laying the foundation for the introduction of said picture in evidence, counsel for the plaintiff inquired of William Painter, one of his witnesses, whether the condition of the street on the 1st or 2d of July was like the condition on the 22d of June (the day of the accident). The witness replied that it was about the same. The witness was then asked whether the picture represents the condition in which the track was on the 22d of June. Counsel for the defendant inquired if the witness were an expert. The court said, "I do not think that is a question that he can answer." The plaintiff offered other evidence tending to show that Chapel street, between Blatchley avenue and Poplar street was in the same condition on July 1st and 2d as on June 22d, and then offered the picture in evidence. The defendant objected to its admission on the ground that it did not and could not correctly represent whether the rails of the defendant's tracks were above the ground or not, or what distance, if any, they were above the ground; that it was not reliable evidence to present to the jury on the question as to the height of the rail above the surface of the street; that distortion necessarily results from the angle at which the picture was taken, and from the fact that a portion of the roadway between the point of focus and the camera is of necessity out of focus, and consequently that any elevation represented between said point of focus and the camera would be abnormal in comparison with other objects further distant; that it is not the best evidence, or in fact any evidence, of the exact height of the rail above the ground at or near the place of accident; that an inspection of the picture itself showed that the artist had specially directed his effort to showing the northerly rail of the south track apparently above the adjoining ground. The court admitted the picture in evidence, and the defendant excepted. Said picture, and the negative from which it was printed, are annexed to the finding as exhibits. Counsel for plaintiff undertook to prove that the defendant repaired the road where the accident occurred, by covering the roadbed with crushed stone, on the 21st of August following the accident. The court excluded evidence for that purpose. The effort to introduce such evidence was renewed several times, and with different witnesses, and every time was excluded. Counsel for the plaintiff, however, in his closing argument to the Jury, alluded to this excluded evidence that the defendant first hardened the roadway on Chapel street between Blatchley avenue and Poplar street on or about August 21, 1898. Defendant's counsel objected to this conduct, and the court stopped it Subsequently plaintiff's counsel took up volume 41 of the Connecticut Reports, and referred to the case of Jacques v. Railroad Co., reported therein on page 51 where, as he stated, the court had awarded $7,500 as damages to that plaintiff, and was reading from the finding of facts in that case, where...