Delaney v. Waterbury & Milldale Tramway Co.

• Decision Date: 19 December 1916
• Citation: 91 Conn. 177,99 A. 503
• Court: Connecticut Supreme Court
• Parties: DELANEY v. WATERBURY & MILLDALE TRAMWAY CO.

99 A. 503

91 Conn. 177

DELANEY

v. WATERBURY & MILLDALE TRAMWAY CO.

Supreme Court of Errors of Connecticut.

Dec. 19, 1916.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Catherine Delaney against the Waterbury & Milldale Tramway Company. Demurrer to complaint sustained, and on plaintiff's refusal to plead further, judgment rendered for defendant, and plaintiff appeals. Error, and cause remanded.

The complaint alleges that the plaintiff received personal injuries in the night season while she was standing at a regular stopping place of the defendant's cars intending to become a passenger upon an approaching car. It alleges that she had signaled to the car to stop; that to insure being seen by the motorman and to avoid injury from passing vehicles she was obliged to stand, when thus signaling, as was customary with intending passengers, near the rails, as the defendant well knew or in the exercise of due care should have known; that the car, as it approached, was being propelled "at a reckless, dangerous, and unlawful speed"; that its powerful electric headlight was undimmed as it approached her, as it might and ought to have been; that by reason of this light being thrown upon her she was blinded so that she lost her power of observation and sense of direction; that the defendant's agents and servants in charge of the car, although they saw, or in the exercise of due care should have seen, and appreciated the plaintiff's peril, negligently failed to slacken its speed or turn off or dim its headlight, and continued on past her at such speed that the car swayed from side to side and its front and rear by reason of the swaying alternately extended beyond the rails farther than usual until in passing "the step or some other projecting part thereof caught her clothing as it passed and threw her to the ground or the suction caused by the excessive speed of said car caused her to be thrown to the ground" whereby she received her injuries, she at the time being blinded and unable to observe the position or swaying of the car. The concluding averment, save that alleging notice, is as follows:

"Said injuries were caused by the negligence of the defendant's servants and agents in failing to turn off or dim said headlight after they saw or in the exercise of due care should have seen the plaintiffs danger; in failing to so operate said car when approaching a place which it had designated as one where persons intending to become passengers might approach its tracks to signal the men in charge of its cars, that persons standing in such customary place to signal and board said cars would not be injured; in failing in any manner to attempt to avoid injuring the plaintiff after they saw or in the exercise of due care should have seen the plaintiff; and by the negligence of the defendant in intrusting said car to servants whom it knew or should have known were incompetent to perform the duties assigned them."

The notice alleged to have been given stated that the plaintiff would claim damages for injuries described sustained by her at a time and place specified "as a result of being struck by a trolley car owned and operated by your company."

Walter E. Monagan, of Waterbury, for appellant. John H. Cassidy, of Waterbury, for appellee.

PRENTICE, C. J. (after stating the facts as above). The demurrer to the complaint, which was sustained, states 14 reasons which, for purposes of our present consideration, may conveniently be grouped under three heads substantially as follows: (1) That the statutory notice given to the defendant did not contain a statement of the cause of injury sufficient to support a recovery, and especially a recovery for the cause alleged in the complaint; (2) that the complaint does not allege a good cause of action by reason of its failure to show that the defendant's negligence was the proximate cause of the plaintiff's injury, and that the plaintiff was free from contributory negligence; and (3) that the allegations touching the conduct of the parties as indicating negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff are vague, indefinite, and inadequate.

The notice informs the defendant that the plaintiff would claim damages for injuries, fully set out, sustained by her as the result of being struck by a trolley car owned and operated by it at a time and place specified. The complaint alleges that the step or other projecting part of the car caught her clothing as it passed her and threw her to the ground, or that the suction caused by the excessive speed of the car caused her to be thrown to the ground whereby she received her injuries. The criticisms of the notice in part sustained by the court below are: (1) That the information it conveyed differs materially from the facts alleged and made the basis of recovery; and (2) that it does not undertake to advise the defendant of the negligent conduct claimed to have been the cause of the plaintiff's injuries.

The principles which govern in determining the sufficiency of the notices required' to be given under Gen. St. 1902, § 1130, as amended by Laws 1913, c. 196, as well as under G. S. § 2020, similar in its pertinent provisions are well established. It is not expected that they will be expressed...