In re Connecticut Co.

• Decision Date: 06 November 1939
• Docket Number: No. 42.,42.
• Citation: 107 F.2d 734
• Parties: In re CONNECTICUT CO. Claim of MULCAHY.
• Court: U.S. Court of Appeals — Second Circuit

107 F.2d 734 (1939)

In re CONNECTICUT CO. Claim of MULCAHY.

No. 42.

Circuit Court of Appeals, Second Circuit.

November 6, 1939.

John H. Weir, of New Haven, Conn. (Frank W. Daley, of New Haven, Conn., on the brief), for appellant.

Edwin H. Hall, of New Haven, Conn., for debtor-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal by Nora Mulcahy from the action of the District Court in disallowing her claim against The Connecticut Company in the proceedings for its reorganization pending below. The claim is one for damages for personal injuries sustained by the claimant while a passenger upon a trolley car of the debtor. Previously the court had referred the claim to a Special Master for hearing and report, and the Master found liability and recommended the allowance of the claim, in the amount of $3,000. In disallowing the claim the court sustained exceptions to the Master's report and found no negligence upon the part of the debtor. We are called upon to review this result in the light of the well settled principle that the findings of fact of a master must be accepted "unless clearly erroneous." General Order 47 in Bankruptcy, 11 U.S.C.A. following section 53; Federal Rule of Civil Procedure 53(e) (2), 28 U.S.C.A. following section 723c; In re Slocum, 2 Cir., 22 F.2d 282.

The accident in question occurred on the evening of January 25, 1935, while the claimant was a passenger upon one of the debtor's trolley cars on Chapel Street in the center of the City of New Haven. Claimant was accompanied by her sister. After the car had crossed State Street, proceeding westerly, she pressed the button at her seat to sound the buzzer as a signal that she desired to get off at Orange Street, the next cross street. Then she and her sister got up from their seat and walked forward toward the front of the car. They say that the trolley began to slow down, a point somewhat in dispute; at any rate, while they were going forward, the car came to a sudden and abrupt stop, throwing them to the floor and causing the plaintiff the injuries for which she claims damages. The court concluded with the Master that, unless justification was shown, an inference of negligence on the part of the motorman would arise. The difference between the Master and the court is as to the motorman's explanation, which was found insufficient by the Master, but was accepted by the court.

The motorman's justification for the abrupt stop is that he was forced to make it in order to avoid striking an automobile suddenly appearing in front of him. A third person waiting at Orange Street for the trolley testified that he observed an automobile pull out in front of the trolley, and the Master did not question this fact. The court looked upon the testimony of this observer as important evidence in support of the motorman's story, because the witness thought the automobile "looked pretty close" to the car, although he could not fix the distance in feet. But it is doubtful if this helps much on the vital issue of the relative position of the two vehicles. Both were coming towards him in the same path half a block away. Under the circumstances he wisely declined to be precise as to the distance between them. The justification, if any, must be found in the motorman's own story checked in the light of all the relevant circumstances.

The court found the Master's report wanting for lack of a finding of the ultimate fact of negligence on the part of the debtor's motorman. If the Master's views were in doubt, his conclusion that liability existed would suggest the propriety of a return of the report to him for clarification, rather than its rejection. Such a course is expressly authorized by the federal rules, cited above. But we think the Master made his conception of the case abundantly clear. His report finding liability is supplemented by a memorandum of decision and a separate summary of the evidence. In both of these documents it is stated that the motorman's testimony must be discredited, and that he did not use reasonable care in making the abrupt stop. And these conclusions are supported by reference to specific facts. A master's report is certainly not to be viewed as were pleadings in the old days with all presumptions against the author. Read reasonably, the Master's various statements do find negligence on the part of the motorman justifying the recommendation made in the case. The court, however, went further and concluded that the subordinate facts found did not lead necessarily to the conclusion reached, and that the Master misapprehended the proper test of negligence to be applied under the circumstances. That, rather than any exceptions to the form of the report, is, as we view it, the substantial basis of the decision below before us for review. To that we may therefore direct our attention.

A transcript of the evidence before the Master deemed important for this appeal appears in the record. It contains the motorman's testimony to the effect that, having stopped to let off a passenger at State Street, he resumed speed and was traveling westerly about 16 miles an hour when opposite Shartenberg's department store on the north side of the street, in the middle of the block between State and Orange Streets, just as an automobile pulled out from the curb on his right and about 20 feet in front of him. To avoid striking the automobile he had to make an emergency stop, but even so "came about 3 feet of hitting him." He was traveling 16 miles an hour, at which rate he could make an ordinary stop in a car length, or 38 feet. With the emergency stop "there isn't any slow down or anything else," "you don't make any slow down. You only put it in, one stop," and "I didn't jolt once before I came to a dead stop." The automobile was traveling 10 miles an hour and did not stop; the motorman could not get the license number because of "these women" who "were thrown right into the front vestibule of the car."

The Master discredited this testimony, to the extent of saying: "We have it therefore established with a practical certainty that the motorman was not going at anything like 16 miles an hour when he brought the car to an emergency stop 20 feet away from the car which pulled away from the curb." In reaching this conclusion the Master relied in part upon "the unquestionably veracious narrative of the plaintiff" showing that the car was appreciably slowing down to a stop at Orange Street. The Master also believed plaintiff's testimony that she had given the buzzer signal for the stop (even though the motorman claimed not to have heard it), and observed that on either alternative — that the motorman did hear the signal, or that he was inattentive — the debtor "cannot maintain its claim that the motorman acted with due care."

The District Court's conclusion favorable to the motorman...