Fat v. Hartford & S. St. Ry. Co.

• Decision Date: 18 December 1908
• Citation: 81 Conn. 330,71 A. 364
• Court: Connecticut Supreme Court
• Parties: FAT v. HARTFORD & S. ST. RY. CO.

71 A. 364

81 Conn. 330

FAT

v. HARTFORD & S. ST. RY. CO.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

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

Action by Katherine E. Fay, as administratrix of the estate of Thomas Walsh, deceased, against the Hartford & Springfield Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

Charles B. Perkins and Ralph O. Wells, for appellant.

Hugh M. Alcorn and Benedict M. Holden, for appellee.

HALL, J. On September 24, 1907, between 4 and 5 o'clock in the afternoon, the plaintiff's intestate, Thomas Walsh, 65 years of age, was struck by the defendant's electric street railway car on Main street, in Windsor Locks, and received injuries resulting in tetanus, from which he died nine days afterward.

The complaint alleges that, when he was injured, Walsh was walking southerly on the right-hand side of the traveled portion of the highway, driving his horse and wagon; that the place where he was injured was dangerous for the passage by each other of teams and cars by reason of the location of the defendant's tracks and the narrowness of the highway; that Walsh was lawfully upon the highway; and that his death was caused by the negligence of the defendant in running the car at an excessive rate of speed, in failing to give proper warning of the approach of the car, in failing to have the car under control, and to bring it to a stop upon overtaking Walsh, and in failing to exercise proper care in the operation of the car in order to avoid injuries to persons and vehicles lawfully upon the highway.

One of the errors assigned in the defendant's appeal is the failure of the court to instruct the jury, as requested, that since there was no allegation in the complaint that the defendant was negligent in failing to equip the car with a sand box, or to sand the rails to prevent the car from slipping on the track, they should disregard all evidence offered upon that subject. The finding states, and there has been no request to correct it that, without objection, evidence was offered by the plaintiff to prove that the car was not equipped with a sand box, but that subsequently "the court, of its own motion, told the jury that this evidence, under the pleadings, was wholly immaterial, and should not be considered by them in determining the issues in the case." While we are of opinion that it would have been better, and especially after a written request to do so, for the court to have stated in its charge what it had already said during the trial, the failure to repeat it does not upon the facts found furnish a sufficient ground for a new trial.

But the principal questions of the case are raised by the defendant's two assignments of error: (1) The refusal of the court to direct a verdict for the defendant when requested; and (2) the denial of the defendant's motion to set aside the verdict as against the evidence, both of which were based upon the claim that, upon the question of the alleged negligence of the defendant and due care of the plaintiff's intestate, there was not sufficient evidence to support a verdict for the plaintiff. A careful examination of the evidence before us fails to disclose any very serious conflict of testimony concerning the circumstances under which the plaintiff's intestate was injured. At the point where the accident occurred, Main street runs practically north and south, and for some distance north and south of that point the defendant's single track is upon the east side of the highway. East of the trolley tracks are the tracks of the New York, New Haven & Hartford Railroad, and between the trolley tracks and the right of way of the steam railroad is a narrow space upon which there are trees and trolley poles, which is unsuited to drive over. West of the trolley tracks is the traveled public roadway about 22 feet wide. The grade of the trolley track descends at this place slightly toward the south. On the day in question Walsh, as an employé of the town, was engaged in cleaning the street gutter on the west side of the road, and was with his horse and dump cart carrying the surface dirt and dumping it along on the east side of the trolley tracks. He was walking with his horse and cart southerly along the road west of the trolley track, and as he turned toward the east, probably to cross the track and dump his cart, he was struck by the running board and perhaps by other parts of the defendant's open passenger trolley car, which was running toward the south. A bone of his left leg was broken, and he sustained other injuries. The spokes of the left or near wheel of the cart were broken. There was a thunderstorm approaching at the time, and the tracks were wet and slippery. The car was not equipped with a sand box or other device to prevent the wheels from sliding when the track was slippery. The motorman who was controlling the car testified that, when Walsh was struck, he was walking on the east side (of the cart), and driving with the lines in his hands. In this he was corroborated by one of the only two witnesses of the plaintiff, both passengers on the car, who saw Walsh just before the accident. The other, a girl 10 years old, in answer to the question, "What did Mr. Walsh do that morning when you saw him?" said, "He had his horse up near the mouth, and he was walking along." Twice during his charge the trial judge stated to the jury that it was an undisputed fact that Walsh was struck as he was driving his team along the highway and walking beside it. All the witnesses who saw Walsh at the time he was struck say, in substance, that he was walking near the west rail of the track with his back toward the approaching car; that he did not stop or look back or appear to hear the gong, or the approaching car, or to be attending to whether one was coming, or to be sensible of its approach. His own statement after the accident was that he thought he was struck by an automobile. As to the alleged failure of the defendant to give proper warning of the approaching car, the motorman testified,...