Farley v. N.Y., N. H. & H. R. Co.

• Citation: 87 Conn. 328,87 A. 990
• Court: Supreme Court of Connecticut
• Decision Date: 25 July 1913
• Parties: FARLEY v. NEW YORK, N. H. & H. R. CO.

87 A. 990

87 Conn. 328

FARLEY

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

Supreme Court of Errors of Connecticut.

July 25, 1913.

Appeal from Superior Court, New Haven County; Milton A. Shumway, Judge.

Action by Eugene F. Farley against the New York, New Haven & Hartford Railroad Company. Judgment for the plaintiff, and defendant appeals. Reversed, and new trial ordered.

This action was brought under the federal Employer's Liability Act 1908, as amended in 1910. The complaint alleges that John H. Bottomley, the plaintiff's intestate, while, acting in the performance of his duties as a locomotive engineer in the employment of the defendant, a common carrier engaged in interstate commerce, met his death through the insufficient and defective condition of its equipment, due to its negligence. It alleges that his death was instantaneously caused by his having been brought into contact with or near to a wire, charged with an exceedingly high voltage of electricity, suspended along and over the center line of the tracks upon which the intestate's engine was proceeding, and used for the operation of the defendant's trains, so that the electric current passed through his body. It is charged that the defective condition complained of arose out of the scant distance above the rails at which the wire was suspended at the point of accident, and the absence of warnings of its proximity to trainmen upon passing trains, or of safeguards from its dangers. The negligence complained of consisted in permitting these conditions to exist. The complaint recites that the action occurred while the intestate, in the proper discharge of his duties, and in the exercise of due care, was passing over the tender in returning from the water tank; that the place of accident was beneath an overhead highway bridge, where the height of the wire from the top of the rails had been reduced from 22 feet 6 inches, the ordinary distance, to about 15 feet so as to enable it to pass under the bridge.

The complaint contains no allegation that the intestate left surviving him either a widow, child, parent, or next of kin dependent upon him.

Upon the trial the defendant presented a considerable number of requests for instructions to the jury, among which were the following, touching the subject of the measure of damages in the event of recovery:

"(19) If you should find that the plaintiff is entitled to damages, you should measure the damages from the point of view of the surviving wife and child. The rule of damages is not the ordinary one familiar in this state of loss to the estate of the deceased, but the financial loss to those he leaves behind him.

"(20) In estimating the damages to the plaintiff's wife and child, if you find that they are entitled to damages, you should bear in mind that it is the financial loss alone to them which is to be considered. You are not to take into consideration for any purpose the grief or sorrow of the survivors, but only the financial loss which they have suffered in the death of Bottomley.

"(21) In considering the financial loss, if any, which Bottomley's death caused to his wife and child, you should consider, not only what his earnings had been, and what they were likely to have been in the future, but the amount which he had actually contributed to their support in the past, and the amount which, under all the circumstances, he would have been likely to contribute in the future, his character, habits, and health, and any other facts and circumstances appearing in the evidence which enable you to say how much financial loss his death actually caused to his wife and child."

The court's instructions upon the subject of damages, aside from those relating to their diminution on account of the deceased's contributory negligence, if any, were as follows: "Now, upon the question of damages, in case you find for the plaintiff, the general rule is that you will assess such damages as will make good the loss sustained by his estate, or, what is substantially the same thing, the measure of damages for an injury causing death is compensation for the pecuniary loss to the surviving beneficiaries from the death of the deceased, and the circumstances to be considered in arriving at the loss to his surviving beneficiaries; you may take into account the age of the deceased, the amount of his earnings, his habits of life, the condition of his health, and the probable duration of his life, but in no case should you assess damages in excess of the amount claimed in the plaintiff's complaint, $15,000."

The court admitted in evidence, against the defendant's objection, section 49 at page 4751 of volume 4 of the Public Statutes of New York, edition of 1909 (Birdseye, dimming & Gilbert's Consol. Laws 1909), which in that portion claimed to be pertinent provided that it should be the duty of every railroad corporation operating its roads by steam to erect and thereafter maintain such suitable warning at every road, bridge, or structure which crossed the railroad above the tracks, where such warning might be necessary for the protection of employés on top of cars from injury. The defendant claimed that this statute did not come within the purview of that portion of section 3 of the federal statute upon which the action was brought, which provides that no employ? who should be injured or killed, should be held guilty of contributory negligence in any case where the violation by the carrier of any statute enacted for the safety of employés contributed to the injury or death of such employés, or of a similar provision in section 4 touching the assumption of risk. It also claimed that in no event was the New York statute applicable to a situation like that before the court. Requests for instruction covering these two propositions, and including one that the statute was of no importance in the case, and should be left out of the jury's consideration, were presented by defendant's counsel, and not complied with. On the contrary, the jury was told that the provisions of the federal statute were such that if the carrier was violating any statute enacted for the safety of its employes, and such violation contributed to the injury or death of an employ? the latter could not be held to have assumed any risk in his employment, or to have been guilty of contributory negligence in any degree.

Included in the charge were instructions touching the subject of the diminution of damages recoverable by reason of the contributory negligence of the deceased, which are not complained of.

The plaintiff presented as a witness the widow of the deceased. Upon cross-examination she was asked if, during the preceding five years, her father-in-law had not contributed to her support; if she could give any idea how much her husband contributed; if she had not kept house for her father-in-law, her child living with her, and he paying the bills; if for the last two or three years prior to her husband's death the relations between herself and her husband had not been unpleasant; if just prior to his death the subject of divorce had not been discussed between them; and if it were not a fact that his insurance policies were made payable to his father. All these questions were upon objection excluded.

After the verdict the defendant moved in arrest of judgment, for the reason that the complaint contained no allegation that the deceased left surviving him any widow, child, parent, or next of kin dependent upon him, or that any widow, child, parent or next of kin dependent upon him suffered any pecuniary loss by reason of his death. This motion was denied, and judgment rendered from the verdict.

Thomas M. Steele and Harrison T. Sheldon, both of New Haven, for appellant.

Charles S. Hamilton, of New Haven, for appellee.

PRENTICE, C. J. (after stating the facts as above). The defendant assigns as reasons of appeal the failure of the trial court to instruct the jury as requested, certain instructions as given, rulings upon the admission of testimony and the denial of motions in arrest of judgment, and to set aside the verdict.

The first paragraph of the finding certifies that an annexed exhibit contains a correct statement of the evidence and rulings, and directs that such exhibit he printed as a part of the record. Here is a sufficient certification of the rulings for the purposes of the appeal from the denial of the motion to set aside the verdict. Farrington v. Cheponis, 84 Conn. 1, 4, 78 Atl. 652. Such certification, however, although embodied in the finding, serves no useful purpose in connection with the appeal from the judgment. The transcript is before us only as an incident of the former appeal and its sole office is in that connection. Summa v. Dereskiawicz, 82 Conn. 547, 548, 74 Atl. 906.

In so far as Information concerning what transpired upon the trial may be necessary for our guidance in the consideration of assignments of error, we are confined to such as may be embodied in the finding in the manner prescribed by statute regulating the preparation of findings. Gen. Stat. § 792. Application of this principle operates to practically eliminate from the reasons of appeal some of the assignments of error, since...