Laufer v. Bridgeport Traction Co.

• Court: Supreme Court of Connecticut
• Citation: 68 Conn. 475,37 A. 379
• Decision Date: 14 January 1897
• Parties: LAUFER v. BRIDGEPORT TRACTION CO.

37 A. 379
68 Conn. 475

LAUFER
v.
BRIDGEPORT TRACTION CO.

Supreme Court of Errors of Connecticut.

Jan. 14, 1897.

Appeal from superior court, Fairfield county; George W. Wheeler, Judge.

Action by Anton Laufer against the Bridgeport Traction Company for injuries received by a collision with an electric car while crossing a drawbridge over a river forming a part of the highway on which the said defendant had laid its double-track trolley railway. Judgment for plaintiff for $1,500, and defendant appeals. No error.

Stiles Judson, Jr., for appellant.

Alfred B. Beers and Edward F. Hall, for appellee.

ANDREWS, C. J. The plaintiff, while driving in a one-horse wagon across the Congress street drawbridge, in the city of Bridgeport,— a much-traveled highway in that city,— was run into by a car of the defendant, and seriously injured. He brought this suit to recover for that injury. The defendant suffered a default, and there was a hearing in damages. The court found that the defendant was negligent, that the plaintiff was not negligent, and assessed the damages to him at the sum of $1,500. These findings are conclusive, and cannot be disturbed unless some error by the trial court has vitiated them. The defendant has appealed to this court, and has assigned very many errors,— some in respect to the admission of testimony, some in respect to the findings of negligence by the defendant and others in respect to the finding that there was no contributory negligence by the plaintiff. The assignments in respect to evidence can be readily disposed of. The defendant introduced as a witness a Mr. Malone, one of its conductors, who was a passenger on the car that ran into the plaintiff, and a Mr. Stroh, another of its employes. They testified in relation to the collision. On cross-examination it appeared that they had each made a written report of the accident to the defendant at the time it occurred. The plaintiff asked that these reports be produced. The defendant refused to do so, and thereupon the court ordered them to be produced, and they were brought into court The plaintiff offered in evidence only two statements from the report of Mr. Malone, and did not offer the report of Mr. Stroh at all. The defendant asked that the plaintiff be required to lay in the whole of both, reports. The court denied the request. The defendant then claimed the right to lay in the whole of both reports as a part of its own evidence. The court overruled the claim, but ruled that the defendant might lay in any part of the report of Mr. Malone in relation to the matters contained in the statements

37 A. 380

which the plaintiff had put in. We think these rulings were correct. The mere calling for a paper or writing does not make it obligatory on the party to put it in evidence. 1 Phil. Ev. (Cow. & H. Notes) 441. As to the report made by Mr. Malone, if the whole of it in fact related to the same matter to which the two statements laid in related, then the whole was admissible, under the ruling, and the defendant was not harmed by it. In the case of Kenny v. Clarkson, 1 Johns. 386, 394, Spencer, J., in giving the opinion, says, "it appears to me that the notice to produce a paper, and calling for its inspection, ought to be considered as analogous to a bill for discovery, where most certainly the answer is not evidence but for the adverse party." Sayer v. Kitchen, 1 Esp. 209; Kidder v. Barr, 35 N. H. 235. The plaintiff called as witnesses Mr. Radel, the president of the defendant, and Mr. Kehrer, its inspector, each of whom is an expert in the management of an electric railway car, and interrogated them as to the management of the car which ran into the plaintiff. We think this testimony was admissible, because it showed to the court what sort of management of an electric car would be reasonable.

A Mrs. Barnes testified, as did also a Mr. Conger, in behalf of the plaintiff, that the car which ran over the plaintiff was moving very rapidly on the same trip at other places than on the drawbridge. It was the claim of the plaintiff that this car on this trip was behind schedule time, and was trying to make up. This testimony tended to establish that claim. The testimony of Mr. Victory that it was the custom and practice to have but one car on the bridge at a time was properly ruled out The defendant could not show that it was not negligent on this occasion by proving that it was prudent and careful on other occasions. Morris v. East Haven, 41 Conn. 252; Russell v. Cruttenden, 53 Conn. 564, 4 Atl. 267. Moreover, it was not claimed that such practice was known to the plaintiff, nor was there any offer to show such knowledge. The rulings upon the inquiry made of Mr. Bradley and the one of Mr. Phillips were correct. Even if incorrect, they did the defendant no harm.

The defendant asked the court to hold that the legislature, by section 13, c. 169, Pub. Acts 1893, had established 15 miles an hour as the maximum rate of speed for electric cars in any town or city street, and that any rate of speed less than that could not be considered a reckless rate. The court did not so hold. We think the court held rightly. The legislature by the section named did not undertake to fix any rate of speed for electric cars. It conferred power on local authorities to regulate the speed of such cars in their streets, with the restriction that a greater rate than the one named should not be allowed.

So many of the assignments as go to the weight of evidence, this court cannot consider. Whatever view is taken of chapter 100, Pub. Acts' 1895, it could not affect this case, as all the evidence is not certified up. Those assignments which refer to the admission of evidence, we have passed on. All the others are intended to be included, and are considered, so far as it is necessary to consider them, in the remaining part of this opinion. Of these, there are various assignments in respect to the finding of the court that the defendant was negligent. These proceed on the assumption that the court required of the defendant a higher degree of care than the law requires. There are various other assignments in respect to the finding of the court that the plaintiff was not guilty of contributory negligence. These proceed upon the assumption that the court required of the plaintiff a less degree of care than the law requires. If the claim of the defendant in either of these classes of assignments is correct then there is error in the judgment, and it must be set aside. Morrissey v. Bridgeport Traction Co., 68 Conn. 215, 35 Atl. 1126; Nolan v. Railroad Co., 53 Conn. 461, 472, 4 Atl. 106; O'Neil v. Town of East Windsor, 63 Conn. 150, 27 Atl. 237.

In the defendant's argument there is one claimed rule of law underlying it, which runs all along through, and upon the correctness of which its claims upon both these classes of assigned errors must stand, if they can be sustained at all The court had held that the plaintiff had the same right to drive his wagon in Congress street that the defendant had to propel its cars there; that the defendant had no right to the use of the street as a highway superior to that possessed by the plaintiff or any other traveler. To this rule the defendant objected, and in its brief the objection is stated in this way: "We complain that the court, in weighing the conflicting evidence in this case, denied to us the benefit that arises out of the proposition that the defendant's right to the use of that portion of the highway occupied by its tracks was superior to that of Laufer's at the time he turned over upon the east-bound track." All the assignments of error in the two classes which we are now considering are framed upon the theory that the proposition so stated is correct in the law. If, on the other hand, the rule applied by the court is the right one, then the defendant has nothing in this part of the case of which it can justly complain. In its argument the defendant has sought to enforce the correctness of its proposition in various ways, and to strengthen it by the citation of authorities. In some parts of the argument it is stated as though the defendant, as a corporation, had a superior right in the highway over other travelers. This claim cannot be supported, as the charter of the defendant gives it no such superior rights. Its charter authorizes it to lay its tracks in the streets, and to run its cars over them for the carrying of passengers, but gives no rights

37 A. 381

in the streets greater than an omnibus company engaged in the same business would have. The streets of Bridgeport are public highways. They have been made such by appropriate proceedings. Every traveler has an equal right therein, and to every part thereof, with any other traveler. The legislature...