Elwood v. Conn. Ry. & Lighting Co.

• Decision Date: 12 August 1904
• Court: Connecticut Supreme Court
• Parties: ELWOOD v. CONNECTICUT RY. & LIGHTING CO.

58 A. 751

77 Conn. 145

ELWOOD

v. CONNECTICUT RY. & LIGHTING CO.

Supreme Court of Errors of Connecticut.

Aug. 12, 1904.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by Nellie Elwood against the Connecticut Railway & Lighting Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The complaint in this case contained these allegations: The plaintiff was a passenger on one of the defendant's cars. While the car was in motion, the conductor of the car "carelessly and negligently called out: 'West port. Change for Norwalk and Saugatuck'— and stepped off said car." The defendant suffered a default, and upon the bearing in damages the court found these facts: The plaintiff was a passenger upon the defendant's electric car, and was injured when alighting from it while the car was in motion. The accident occurred on the 2d day of May, 1902, at about 7:50 p. m., when it was dusk, but not dark, and in a highway which was fairly well lighted. As the car, which was an ordinary closed car, was nearing the terminus of the defendant's road at Westport, and was moving slowly, which was apparent to the passengers, the conductor called into the car: "Westport. Change for Norwalk and Saugatuck"—and left the platform, and began putting up the rear fender. When the conductor left the car, it was moving very slowly, and was practically at the terminus of the road. The plaintiff shortly thereafter, in the exercise of due care, and believing from the conductor's call and conduct, and the appearance and location of the car, that it had fully stopped, went to the rear platform, and stepped off "at right angles to the line of the car, and without holding on." The car was in fact moving slightly, but practically imperceptibly to a passenger, and the plaintiff, in stepping off, was given just enough momentum to cause her to fall. When the plaintiff arose to leave the car, several passengers had arisen and were leaving the car, and at least one had alighted before the plaintiff. The car moved forward from four to six feet after the plaintiff alighted. The conductor stood at the rear of the car, working at the fender, and could see the passengers alighting, but he gave no warning that the car was in motion. The finding states that the court is unable to find from the testimony whether the car had come to a stop, and then moved forward, or did not stop at all after the conductor called out, and that it did not find from the evidence that the defendant was not guilty of negligence, or that the plaintiff was guilty of negligence, but ruled that the facts found did not show that the defendant was not negligent, as charged in the complaint, or that the plaintiff was guilty of contributory negligence. Judgment was rendered for the plaintiff for $1,000 damages.

William T. Hincks, for appellant.

Elmore S. Banks and William A. Redden, for appellee.

HALL, J. (after stating the facts). The effect of the admission by the defendant of the averments of the complaint by suffering a default was to impose upon it the burden of either disproving its alleged negligence, or proving the plaintiff's contributory negligence, in order to escape liability for the full amount of damages proved by the plaintiff. Without deciding the question either of negligence or contributory negligence, the trial court found the facts which were proved, and ruled that by proof of these facts the burden so placed upon the defendant had not been sustained. If the facts found show, as matter of law, either that the defendant was not negligent as alleged, or that the plaintiff was guilty of contributory negligence, the judgment of the trial court was erroneous; otherwise it must stand. The substance of the charge of negligence in the complaint is that by the alleged language and conduct of the conductor, under the circumstances set forth, the plaintiff was fairly induced to step from the car while it was in motion. The defendant is therefore obliged to claim either that as, a matter of law, no such effect can be given to the words and acts of the conductor upon the facts found, and that the facts therefore...