Fallo v. New York, N.H. & H. R. Co.

• Decision Date: 02 June 1937
• Citation: 192 A. 712,123 Conn. 81
• Parties: FALLO v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

192 A. 712

123 Conn. 81

FALLO v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

June 2, 1937

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by Alice Fallo against the New York, New Haven & Hartford Railroad Company for damages for personal injuries alleged to have been caused by the negligence of the defendant, which was tried to a jury. Verdict and judgment for the plaintiff and the defendant appeals.

Error and new trial ordered.

Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN, JJ.

Edwin H. Hall and James W. Grady, both of New Haven, and E. R. Brumley, of New York City, for appellant.

Sheldon B. Smith and Robert B. Devine, both of Norwalk, for appellee.

MALTBIE, Chief Justice.

The plaintiff, a child two years of age, brought this action to recover damages for injuries resulting from being struck in the head by a bolt of iron which she claimed was a part of the equipment of a passenger train of the defendant, and which, the cotter pin designed to hold it in place having broken or fallen out, was displaced and hurled through the air by the speed of the train as it passed the automobile in which she was riding. The jury might reasonably have found the following facts: The plaintiff was riding on the rear seat of the automobile which was being operated by her father. It was going up an incline to a bridge over the track of the defendant. At the place of the accident the highway and the track were parallel and close to each other, the highway being some eight or ten feet above the track. A passenger train of the defendant was passing, going at a speed of fifty miles or more per hour. The bolt struck the window of the automobile, shattering it, and, passing through, struck the head of the child. The bolt was of a type commonly used to secure a portion of the braking equipment upon passenger coaches such as formed a part of the passing train, and a portion of it indicated recent use because the metal was shiny. Each of these bolts is secured in place by a cotter pin passing through a hole in one end, but the pins at times become so worn or broken that the bolt can fall out. It is a part of the duty of employees of the defendant to inspect the braking equipment and to replace any of the bolts or cotter pins which have fallen out or become too damaged or worn for safe use. The bolt weighed a little over one pound and six ounces. There was no traffic upon the highway at the time of the accident, and the father of the child shortly after it occurred looked about and saw no one.

The plaintiff offered no direct testimony as to the cause of the bolt flying through the air, and a recovery would necessarily depend upon the application of the doctrine of res ipsa loquitur. The defendant concedes that the jury could reasonably have found the existence of the first and third of the conditions which we have stated to be necessary for the application of that doctrine, that is, that no injury would ordinarily have resulted from the use of the bolt unless there was negligent construction, inspection, or user, and that the injury resulted irrespective of any voluntary action on the part of the child. Briganti v. Connecticut Co., 119 Conn. 316, 175 A. 679. It contends that it would not be reasonable to conclude that the second condition for the application of the doctrine existed, that is, that the user at the time of the injury was in the control of the defendant. The ground of that contention is that the jury could not reasonably have found that the bolt was hurled by the passing train. The defendant does not claim that this could not have happened, but says that there were other inferences as to the cause of the bolt flying through the air which might as reasonably have been drawn as that it was hurled from the train, and that, consequently, the plaintiff did not sustain her burden of proof to show by a fair preponderance of evidence that the accident was caused in that way. It suggests as reasonable explanations of the accident that the bolt might have been thrown by some one either beside the track or on the train, who was out of the sight of the occupants of the automobile at the time of the accident and at the time when the father of the child looked after it occurred, or that the bolt might have been placed on the track by some one before the train passed and so did not come from the train.

As between the explanation of the accident claimed by the plaintiff and those suggested by the defendant, we cannot say that the jury could not reasonably conclude that the former was the more probable. Certainly it is highly improbable that any one would throw a bolt such as the one which struck the child from the top of the passenger train, and the jury might have regarded it as approaching the impossible that any one in the train should do so. They might reasonably have concluded that it was highly improbable that any one not on the train would throw...