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

• Decision Date: 01 June 1898
• Citation: 40 A. 533,70 Conn. 563
• Parties: HUBBARD v. NEW YORK, N. H. & H. R. CO.
• Court: Connecticut Supreme Court

40 A. 533

70 Conn. 563

HUBBARD

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

Supreme Court of Errors of Connecticut.

June 1, 1898.

Appeal from superior court, Middlesex county; Silas A. Robinson, Judge.

This was an action brought by Edwin N. Hubbard against the New York, New Haven & Hartford Railroad Company, pursuant to the provisions of sections 3581 and 3582 of the General Statutes for injury done to ice houses, the ice therein, and certain other property belonging to the plaintiff, by fire communicated thereto by a locomotive engine of the defendant without any contributory negligence on his part. The defendant suffered a default, and there was a hearing in damages. The court assessed the damages to be $2,964.91. And rendered judgment for the plaintiff to recover that amount. Both parties appealed to this court. Reversed.

Hiram R. Mills and Wesley U. Pearne, for plaintiff.

Clarence E. Bacon, for defendant.

ANDREWS, C. J. There is error in the plaintiff's appeal. In any case where it is established that a party is entitled to recover damages for an injury done to his property without malice, the quantum of damages is to be computed as of the day the injury was done. In this case, it being conceded by the default that the plaintiff was entitled to have some amount of damages, the only question on which the court could decide was, how much? In respect to the ice this question could be answered by ascertaining the number of tons there were in the houses on the day the fire took place, and its market price on that day. The court found the price to be, on the day of the fire, 80 cents per ton. But la ascertaining the number of tons for which the plaintiff is to be paid, the court, instead of taking the number of tons then in the houses, has taken only the number of tons which it estimated would remain on hand at the end of the next summer. This is error. The plaintiff is entitled to be paid for all the ice then in the ice houses,—less what was saved, if any,—at its then market price. Parrott v. Railroad Co., 47 Conn. 575; Regan v. Railroad Co., 60 Conn. 143, 22 Atl. 503; Hurd v. Hubbell, 26 Conn. 389; Cook v. Loomis, Id. 483; Oviatt v. Pond, 29 Conn. 479; 2 Sedg. Meas. Dam. 368. The defendant, having destroyed the plaintiff's property on a certain day, cannot justly be exempted from payment by alleging or even showing that, if it had not destroyed the property, the plaintiff subsequently would have lost it in some other way.

The only assignment of error on the defendant's appeal, though stated in various forms, is that the court erred in holding that the act of 1897 (Pub. Acts 1897, c. 220) applied to this case, and ordering the motion...