Farrell v. Waterbury Horse R. Co.

Decision Date20 March 1891
Citation21 A. 675,60 Conn. 239
PartiesFARRELL v. WATERBURY HORSE R. CO.
CourtConnecticut Supreme Court

Appeal from district court of Waterbury; Cowell, Judge.

J. O'Neill, for appellant.

G. E. Terry, for appellee.

TORRANCE, J. This is an action brought to recover damages for an injury caused to the plaintiff by the negligence of the defendant in the management of one of its horse-cars on a public highway. The case was defaulted and heard in damages. The court below made a finding of the subordinate and evidential facts, bearing upon the question of the negligence of the defendant, and the contributory negligence of the plaintiff, and then added the following: "I find that the defendant was not negligent in running the car in the manner above described, unless the foregoing facts constitute negligence. On the foregoing facts, however, I find that the plaintiff was guilty of contributory negligence, and therefore assess to him seventy-five dollars only, as nominal damages. If the plaintiff was not in the above-recited facts guilty of contributory negligence, his injuries were of such a character that he should recover sixfold the assessed damages." Upon the trial below the plaintiff made certain claims upon matters of law, which are set forth in the record. Four of the six reasons of appeal filed in this case are based upon the assumed fact that the court below decided these claims adversely to the plaintiff. But the record neither expressly, nor by necessary implication, discloses any such fact. For aught that appears, the court below took the view of the law, as expressed in these claims, which the plaintiff asked it to take. This court, upon an appeal, cannot consider any error assigned in the reasons of appeal, unless "it also appears upon the record that the question was distinctly raised at the trial, and was decided by the court adversely to the appellant's claims." Gen. St. § 1135. We cannot, therefore, consider the matters set forth in the last four reasons of appeal.

This leaves to be considered only the first two reasons of appeal, which are stated as follows: "(1) The court erred in deciding that the defendant, on the facts found, was not negligent. (2) In deciding that the plaintiff was guilty of contributory negligence."

The plaintiff claims that the conclusions of the trial court upon the facts found, as to the negligence of the defendant, and the contributory negligence of the plaintiff, are inferences or conclusions of law, which may be reviewed by this court upon an appear and the defendant claims that they are inferences or conclusions of fact, which cannot be so reviewed. If the plaintiff is right in his claim, this court can and ought to review the conclusions aforesaid. If the defendant is right, there is, properly, no question presented upon the record for the consideration of this court. Whether, in a given case involving the question of negligence of either the plaintiff or defendant, the conclusion or inference of negligence drawn by the trier or triers is one which this court has or has not the power to review, Is always an important, and often a difficult, question to determine. Its importance arises from the fact that in the former case such conclusion may, upon review, be either sustained or set aside by this court; while in the latter case such conclusion, whether drawn correctly or not, is, generally speaking, final and conclusive. The difficulty of determining whether the conclusion belongs to one or the other of these classes arises, in part at least, from the complex nature of negligence, as a legal conception, and the fact that the word "negligence" is frequently used for only a part of this complex conception. "Negligence, like ownership, is a complex conception. Just as the latter imports the existence of certain facts, and also the consequence (protection against all the world) which the law attaches to those facts, the former imports the existence of certain facts, (conduct,) and also The consequence (liability) which the law attaches to those facts." Holmes, Com. Law, p. 115. This conception involves, as its main elements, the subordinate conceptions of a duty resting upon one person, respecting his conduct towards others, a violation of such duty, through heedlessness or inattention on the part of him on whom it rests; a resulting legal injury or harm to others as an effect; and the legal liability consequent thereon. Accordingly, as a legal conception, "negligence" has been defined as follows: "A breach of duty, unintentional, and proximately producing injury to another possessing equal rights." Smith, Neg. p. 1. But neither in text-books, nor in judicial decisions, is the word "negligence" used at all times as standing for all the elements of this entire complex conception. When, in courts of law, the principal question is, what was the conduct? it is customary, and perhaps allowable, to say that the question of negligence is one of fact, to be determined by the trier, and, when the question principally respects the duty or the liability, to say that it is a question of law. When, therefore, in text-books, or in adjudged cases, the assertion is made that the "question of negligence" is a "question of fact," or is a "question of law," or is a "mixed question of law and of fact," no confusion of thought will result, if the sense in which the word "negligence" is used in the particular instance be ascertained, and this, in most cases, may be readily determined from the context.

But another, and perhaps the chief, cause of the difficulty of determining, in a given case, whether the conclusion as to negligence is one of law or of fact, arises from another source, which we will now consider. The conception of negligence, as we have seen, involves the idea of a duty to act in a certain way towards others, and a violation of that duty by acts or conduct of a contrary nature. The duty is imposed by law, either directly by establishing specific or general rides of conduct binding upon all persons, or indirectly, through legal agreements, made by the parties concerned. It is with duties not arising out of contract that we are here concerned. There is further involved, in the legal conception of negligence, the existence of a test or standard of conduct, with which the given conduct is to be compared, and by which it is to be judged. The question whether the given conduct comes up to the standard is frequently called the question of negligence. The result of comparing the conduct with the standard is generally spoken of as "negligence," or "the finding of negligence." Negligence, in this last sense, is always a conclusion or inference, and never a "fact," in the ordinary sense of that word. When the question of negligence, in the above sense, can be answered by the court, it is called a question of law, and the answer is called an inference or conclusion of law; when it is and must be answered by a jury or other trier, it is generally called a question of fact, and the answer is called an inference or conclusion of fact. Where the law itself prescribes and defines beforehand the precise specific conduct required, under given circumstances, the standard by which such conduct is to be judged is found in the law. When, in such a case, the conduct has been ascertained, the law, through the court, determines whether the conduct comes up to the standard. The rules of the road, some of the rules of navigation, and the law requiring the sounding of the whistle or the ringing of the bell of a locomotive approaching a grade crossing, at a specified distance therefrom, may serve as instances of this kind. Of course, if, in cases of this kind, one of the parties injures another, he is not necessarily absolved from blame, by showing a compliance with the specific rule of law, for it may be that while so doing he neglected other duties which the law imposed upon him. But when the only question is whether the ascertained conduct comes up to the standard fixed by the specific rule or lavs, the conclusion, inference, or judgment that it does or does not is, as we have said, one of law. A question of law, in the true sense, is one that can be decided by the application, to the specific facts found to exist, (here the conduct of some person, and the circumstances under which he acted or omitted to act,) of a pre-existing rule. Such a rule must contain a description of the kind of circumstances to which it is to apply, and the kind of conduct required. Terry, Anglo-Amer. Law, par. 72.

In such cases, as this court said in substance in Hayden v Allyn, 55 Conn. 289, 11 Atl. Rep. 31, the evidence exhausts itself in producing the facts found. Nothing remains but for the court, in the exercise of its legal discretion, to draw the inference of liability or non-liability, and this inference or conclusion can, in such cases, always be reviewed by this court. Clear cases of this kind usually present no difficulty. As applicable to most cases, however, the law has not provided specific and precise rules of conduct; it contents itself with laying down some few wide, general rules. The rule that all persons must act and conduct themselves, under all circumstances, as a man of ordinary prudence would act, under like circumstances, is an illustration of this class of rules of laws. This general rule of conduct is not a standard of conduct, in the same sense in which a fixed rule of law is such a standard. In most cases, where it must be applied, the principal controversy is over the question, what would have been the conduct of a man of ordinary prudence, under the circumstances? Manifestly the rule itself can furnish no answer to that question in such cases. "The rule usually propounded, to act as a reasonable and prudent man would act in the circumstances, still leaves open the question how such a man would act." Id. It is also a varying standard. "In dangerous situations, ordinary care...

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