Lawler v. Hartford St. Ry. Co.

• Citation: 43 A. 545,72 Conn. 74
• Court: Supreme Court of Connecticut
• Decision Date: 08 June 1899
• Parties: LAWLER v. HARTFORD ST. RY. CO.

43 A. 545

72 Conn. 74

LAWLER

v. HARTFORD ST. RY. CO.

Supreme Court of Errors of Connecticut.

June 8, 1899.

Appeal from superior court, Hartford county; John M. Thayer, Judge.

Action by John A. Lawler, as administrator, against the Hartford Street-Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

The court found the following facts: The defendant, on December 29, 1897, operated a line of trolley cars upon a public highway called "New Park Avenue" in the city of Hartford, the length of said line being about a mile,—5,000 feet. About noon on said day the collision described in the fourth paragraph of the complaint occurred between one of the defendant's cars upon said line operated by its employes and the wagon in which said John Lawler was riding. The place of the collision was about one-third of a mile north of the city line and from the southerly end of the defendant's car track. Just before the accident said car was proceeding northward along said track, which was in the center of said street, and said Lawler was driving northward on the east side of, and about six feet from, said track in his said wagon. He was jogging along at the rate of 4 or 5 miles an hour, and when said car was at least 70 feet from him in his rear he turned in upon said track, and, without slackening his speed, attempted to cross at an angle of 45 degrees. When the rear wheel of said wagon was upon the west rail of said track, the fender of said car struck said wheel, pushed said wagon along the street a short distance, and overturned it, and threw said Lawler into the air and to the ground, inflicting the injuries described in paragraph 1 of the finding of facts. The point at which the collision occurred is near the bottom of a hill, the grade of which, varying somewhat at different parts of the hill, rises on the average 2.7 per cent. for 700 or 800 feet south of the place of accident, and at a less per cent. from that point to the southern terminus of said track; the total fall in grade from said terminus to the place of accident, 1,700 feet, being 26 feet. Schedule time for the car in making the run from said terminus to the north terminus of the line was eight minutes; and proper operation of the car in making such run required that in going down this grade the speed should be less than in running on an up-grade at the north end of the line, because little or no power was used on the down-grade, and the car was controlled by the brake, while on the up-grade power was used to propel the car. So operated, the car can be stopped in twice its length,—70 feet. On the trip now in question the car started on time, proceeded at half power to a point about 800 feet south of the place of accident, and at that point power was entirely shut off, and the car "coasted" down the hill by gravity, and no power was applied thereafter before the accident except the reverse power, to be mentioned hereafter. The motorman sounded the gong as he began to coast, and sounded it several times before said Lawler turned across the track. When he saw Lawler turn upon the track, he sounded the gong violently, and let go the brake, and reversed the power so as to stop the car as soon as possible, at the same time calling loudly to Lawler, and doing all in his power, unless he should have sanded the tracks by a means provided for such purpose, to stop the car. The car, after striking the wagon, ran at least 130 feet before it was stopped. The morning of this day had been extremely cold, and the air was frosty. There was a light covering of snow upon the ground. The tracks, as the conductor and motorman of the car testified, were slippery in places. The car, after its trip south, had waited at the southern terminus only four minutes before starting on the trip on which the accident occurred. The rate of speed at which the car was moving just before the collision cannot, from the conflicting evidence, be accurately determined. It was more than 8 miles an hour, the highest rate fixed by the defendant's witnesses, and less than 20 miles an hour, the highest fixed by the plaintiff's. I am satisfied and find that it was at least 10 miles an hour. It was probably 12. Between the point of collision and the southern terminus of the track the street is sparsely built upon, there being but 15 houses upon the street for this distance; and in this distance no other street crosses New Park avenue. There is, however, considerable driving and travel upon the street, that portion of it lying west of the car tracks being newly macadamized, and the portion east of the tracks being well turn piked, and in excellent repair. The avenue and car tracks end near the entrance to Charter Oak Park. The street is 40 feet wide. Lawler was a man over 60 years old, and was slightly deaf. He lived in the southerly part of the city of Hartford, on New Britain avenue, and was familiar with that part of the city and with New Park avenue. Just before the accident, he had come past the ear standing at the terminus, and knew that it must soon be coming back upon its return trip. He did not stop before turning across the track. Whether he looked back or listened before attempting to cross did not appear. No witness was produced who saw him do so. Those on the car who saw him ahead— the conductor, motorman, and one passenger—did not observe him do so; but their attention was not particularly fixed upon him until he turned upon the track, and they saw his danger. So far as they observed, there was nothing to indicate that he intended to cross the track until he actually turned towards it. When he turned upon the track he had time, at the speed at which he was driving, to cross safely ahead of the car, had it been going at its ordinary, proper rate of speed. As the car approached, and the collision became imminent, he lashed his horse, and did everything possible for one in his circumstances to avoid the accident. There was no obstruction in the street, and no reason for his crossing the track was shown.

The defendant claimed and asked the court to hold and rule (a) that the defendant was guilty of no negligence; (b) that the accident was due wholly to the negligence of the plaintiff's intestate; (c) that, if the defendant was guilty of negligence, Mr. Lawler was guilty of contributory negligence; (d) that as it was in uncontradicted evidence, and admitted by the plaintiff, that the motorman did all in his power to stop the car as soon as Mr. Lawler indicated his intention to cross, there could be no imputation of supervening negligence; (e) that the attempt of the plaintiff's intestate to cross the track without either stopping, looking, or listening, and without using his senses in any way to discover the approach of the car, was negligence, and was contributory to the result; (f) that the conduct of the plaintiff's intestate prior to the collision constituted contributory negligence; (g) that, as the plaintiff's intestate endured no pain or suffering after the accident, and no other damage than that claimed to be due for the death itself had been proved, the plaintiff could recover only nominal damages; (h) that upon the facts of the case, the plaintiff should have been awarded only nominal damages, The court did not find from the evidence that the defendant was not guilty of negligence, or that the plaintiff's intestate was guilty of negligence, but ruled and held that the facts found did not show that the defendant was not guilty of the negligence charged in the complaint, or that the plaintiff's intestate was guilty of negligence contributing to his injury. The court also found that there was mental and physical suffering for an appreciable length 01 time by said intestate after his wagon was struck. The defendant's claims were overruled, and a judgment for substantial damages was rendered in favor of the plaintiff.

The following are the reasons of appeal: The court erred in holding that the facts did not show that the defendant was not guilty of the negligence charged in the complaint; the court erred in refusing to find from the facts and evidence that the defendant was not guilty of negligence; the court erred in not holding that the accident was due wholly to the negligence of the plaintiff's intestate; the court erred in refusing to hold upon the facts of the case that, if the defendant were guilty of negligence, plaintiff's intestate was guilty of contributory negligence; the court erred in refusing to hold that the attempt of the plaintiff's intestate to cross the track without either stopping, looking, or listening, and without using his senses in any way to discover the approach of the car, was negligence, and was contributory to the result; the court erred in refusing to hold that the conduct of plaintiff's intestate prior to the collision constituted contributory negligence; the court erred in its refusal to adjudge that upon the facts of the case the plaintiff should have been awarded only nominal damages.

Henry C. Robinson and John T. Robinson, for appellant.

Charles E. Perkins and Arthur Perkins, for appellee.

HALL, J. (after stating the facts). The defendant suffered a default, and the plaintiff, on the hearing in damages, proved that by force of the collision described in the complaint his intestate was thrown from his wagon, and sustained injuries from which he died on the following day. The plaintiff then rested his case, and the defendant, under a notice filed in pursuance of chapter 220 of the Public Acts of 1897, offered evidence to prove that the accident was not caused by its negligence, and that the negligence of the deceased, Lawler, contributed to cause his injury. The plaintiff then offered evidence to rebut that of the defendant. From all the evidence so offered the court has found the facts set forth in the finding, and, without having found as a fact from such evidence, or as a conclusion of fact or law from the facts...