Hayden v. Fair Haven & W. R. Co.

• Decision Date: 06 January 1904
• Parties: HAYDEN v. FAIR HAVEN & W. R. CO.
• Court: Connecticut Supreme Court

56 A. 613

76 Conn. 355

HAYDEN

v. FAIR HAVEN & W. R. CO.

Supreme Court of Errors of Connecticut.

Jan. 6, 1904.

Appeal from Superior Court, New Haven County; Silas A. Robinson, Judge.

Action by Charles H. Hayden against the Fair Haven & Westville Railroad Company. From a judgment for defendant, plantiff appeals. Affirmed.

In this court the appellee filed a plea in abatement, to Which the appellant demurred. Demurrer sustained and plea in abatement overruled.

Henry G. Newton, Harrison Hewitt, and Phelps Montgomery, for appellant.

Harry G. Day and Henry F. Parmelee, for appellee.

TORRANCE, C. J. The plea in abatement and the demurrer thereto will be first considered. The statute (Gen. St. 1902, § 788) provides that appeals to this court in cases like the one at bar shall be taken "to the Supreme Court of Errors next to be held after the filing of the appeal, in the judicial district where the judgment was rendered." Another statute (Gen. St. 1902, § 708) prescribes a form of appeal to the Supreme Court of Errors; provides that such an appeal shall "substantially" follow that form, and shall "state the court and the time and place of holding it." In the case at bar the appeal could be taken only to the Supreme Court of Errors to be holden at Bridgeport on the fourth Tuesday of October, 1903. The written appeal, filed July 2, 1903, states that the appeal is taken "to the Supreme Court of Errors, next to be holden at Bridgeport, in the county of Fairfield, within and for the Third Judicial District." The defendant claims that the appeal is defective because it fails to state the time when the appellate court sits. We think this claim is not well founded. In the appeal the appellate court is, in effect, described as (1) the Supreme Court of Errors; (2) to sit at Bridgeport; (3) next after July 2, 1903. The only Supreme Court of Errors that could by law sit at Bridgeport next after July 2, 1903, was the one to sit there on the fourth Tuesday of October, 1903; and the description in the appeal can apply to that court, and to no other. The time of the sitting of the court is not expressly stated, but it is by clear implication. The defendant is informed by the appeal that it is taken to the appellate court that is to sit at Bridgeport next after July 2, 1903, and he knew that this could only mean the court that was to sit at Bridgeport on the fourth Tuesday of October, 1903. If, to the description of the appellate court in the appeal, had been added the words "on the fourth Tuesday of October, 1903," they would have added nothing in substance to the description, or to the information conveyed by it to the defendant. The appeal does not, perhaps, in form, comply with the statute, because that seems to require that the time of the sitting of the court shall be expressly stated, and it is always safer to follow the form prescribed; but the appeal does by clear implication state the time with certainty, and in so doing we think it "substantially" complies with the statute. The case of Redfield v. Buck, 35 Conn. 328, 95 Am. Dec. 241, tried in 1868, involved a question somewhat similar to the one here presented, although the question in that case arose upon a motion in error. The statute (Gen. St. 1866, p. 45, tit. 1, c. 13, § 210) then provided that motions in error should be taken "to the next Supreme Court of Errors, which would have cognizance of a motion for a new trial, in the cause." Under this law the motion for a new trial in the above-named case could only be taken to the Supreme Court of Errors at its September term, 1867. The motion was taken simply to the "next term of the Supreme Court of Errors," and that was held to be a sufficient description of the appellate court. The case at bar, in respect to the point now in question, differs radically from the Shelton Street Ry. Co. Case, 70 Conn. 320, 30 Atl. 446. In that case the appeal could be taken to any term of the Supreme Court of Errors "next to be held in the judicial district or county where the parties or any of them reside." The parties resided in different counties. The appeal might therefore be taken to the next term of the appellate court in one county, or in some other county, at the will of the appellants. The appeal in that case was simply taken to "the Supreme Court of Errors," without specifying either time or place. It gave the appellee no certain information as to the court to which the appeal was taken, but left him to ascertain that court at his peril. There is nothing in that case inconsistent with our decision in the present case. The plea in abatement is overruled.

It remains to consider the case upon its merits. The reasons of appeal are based upon claimed errors in the rulings upon evidence and in the charge.

The material facts claimed to have been proved by the plaintiff may, in substance, be stated in this way: The defendant operates street railway lines in, and runs electric cars through, State and Elm streets, in New Haven; and Elm street runs in a northwesterly direction from State street, and at right angles thereto. About 5 o'clock in the afternoon of August 14, 1902, the plaintiff, in conversation with one Comstock, was standing on the sidewalk, on the northwest corner of Elm and State streets, about 12 inches from the edge of the sidewalk, facing away from Elm street, and partly up State street There was then at this corner an electric fight pole and a police telephone box, about 6 feet apart, and the plaintiff stood between them. The running boards of certain of the cars used by the defendant on its lines running round this corner—that is, the running boards of the long, double-truck cars—overlapped the sidewalk at one point a distance of two feet; but the plaintiff offered no evidence as to how far such boards overlapped the sidewalk where he stood, "except the fact that plaintiff was struck by the running board of a car." There was a great deal of travel at this corner, and cars were passing there at least once every minute, and bells were being constantly rung on such cars. Just before the accident to the plaintiff, a short Car passed the plaintiff safely while he stood as above described. Shortly thereafter one of the long cars came down State street, approached said corner, slacked its speed, rang its gong, and passed around said corner slowly. The front and about one-half of the body of the car passed the plaintiff in safety, "when the running board of said car, at or near the middle of the car, as the car rounded the curve, struck the calf of the plaintiffs leg", causing serious injuries to him and endangering his life. The car was not stopped after the injury, but continued on its course." Such is the plaintiff's case.

The defendant claimed to have proved, in substance, these facts: That its charter authorized it to build and operate said railway lines. The tracks were built upon the layout and according to the plan approved by the city authorities, in the manner required by law. Owing to the presence of a double-track railway in State street, leading into Grand avenue, "it was impracticable to place said railway tracks so that the cars used thereon would overlap said sidewalk less than they in fact did." The radius of the curve opposite the point of the corner "was flattened to one hundred feet, to diminish the overlap as much as possible." The car that struck the plaintiff was of a kind in common use in New Haven and elsewhere. Their use had become necessary, owing to the increase of traffic. They had been used on the lines in question for three or four years, and elsewhere for four or five years, and public necessity and convenience required their use on the lines here in question. When upon a straight track the running board of such car projected about 19 inches beyond the rail, and at the place of the injury the running board, at the center of the car, extended 42 inches outside of the rail. At the point where the overlap was greatest at this corner the running board projected over the curbstone and over the sidewalk for a distance of 25 inches. The amount of said overlap constantly diminished after the car passed that point, and as it approached the place where the plaintiff stood. The overhang at the point where plaintiff claimed to have been standing was very little, "but, owing to said point not being exactly determined, it was impossible to prove the exact amount thereof." The defendant also claimed to have proved that it had been guilty of no negligence as alleged in the complaint, and that the plaintiff, in remaining in a position of danger after due notice of the approach of the car, had been guilty of contributory negligence. Such, in brief, was the defendant's case.

The plaintiff requested the court to charge the jury as follows: "(a) Plaintiff had a right to stand on the sidewalk, conversing, and was not under obligation to watch lest trolley cars should extend over the sidewalk and strike him. (b) If defendant operated a car which extended over the sidewalk, it was bound to the utmost care and diligence to prevent any injury thereby to any person standing on the sidewalk. (c) If the defendant operated a car which extended over a part of the sidewalk, it was bound to see to it that no injury occurred to any person standing on the sidewalk. (d) If the plaintiff, while...