Morse v. Consol. Ry. Co.

• Decision Date: 18 December 1908
• Citation: 71 A. 553,81 Conn. 395
• Court: Connecticut Supreme Court
• Parties: MORSE v. CONSOLIDATED RY. CO.

71 A. 553

81 Conn. 395

MORSE

v. CONSOLIDATED RY. CO.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from Superior Court, New Haven County; Joel H. Reed, Judge.

Action by Caleb A. Morse, administrator, against the Consolidated Railway Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed.

Charles S. Hamilton and Caleb A. Morse, for appellant.

Harry G. Day and Thomas M. Steele, for appellee.

THAYER, J. The plaintiff seeks to recover damages for injuries received by his intestate in being struck and dragged along the highway by one of the defendant's cars. He alleges that the injuries were caused by the negligence of the defendant, in that its motorman in charge of the car ran it at an excessively high rate of speed, and did not have it under control, and failed to give the intestate any warning of any kind of the approach of the car, and also failed to stop it or get it under control after he discovered her peril. The parties were at issue to the jury upon a denial of these allegations. The plaintiff introduced his evidence and rested his case, and thereupon the defendant, without introducing any evidence, rested its case, and requested the court to instruct the jury to return a verdict for the defendant. The court complied with this request, and its action in so doing presents the chief question raised by the plaintiff's appeal.

It is not claimed that the court erred in directing the verdict, provided there was no evidence in the case from which the jury could reasonably find a verdict for the plaintiff. The claim is that there was such evidence. Viewing the plaintiff's evidence from the aspect most favorable to him, the following are the only facts essential to the issues which are directly established by it: The intestate was a deaf and dumb girl four years and one month of age. On the morning of her injury her mother had given her a pencil and piece of paper, and left her upon the veranda of their home to amuse herself. Shortly thereafter, the girl was at a store upon the southerly side of the street and diagonally across from her home. A few minutes later, she was observed upon the sidewalk in front of the store, facing toward the street as if about to step down into the traveled path. The width of the street was not proven; but, as shown by photographs which were in evidence, it was wide enough for the double tracks of the defendant's railway and a traveled path for vehicles upon each side of the tracks. The street was straight for several hundred feet easterly of the place of the accident, and was not much traveled. A few minutes after the intestate was observed on the sidewalk in front of the store one of the defendant's cars came along, bound west upon the northerly or west-bound track. The attention of one of the witnesses was attracted to it by the loud sounding of the gong. She also heard the car stop with a jolt. After the car was stopped, it was backed a trifle by the defendant's servants, and they then removed the intestate from under the fender, which was down, in front of the car. She was bruised, and her clothing was torn. The piece of paper which her mother had given her to play with was found upon or near to the northerly rail of the west-bound track, about 70 feet easterly of the point where she was taken from under the fender. The dirt along the track between the two points "was kind of brushed up." There is an...