Munroe v. Hartford St. Rt. Co.

• Decision Date: 18 December 1903
• Citation: 56 A. 498,76 Conn. 201
• Court: Connecticut Supreme Court
• Parties: MUNROE v. HARTFORD ST. RT. CO.

56 A. 498

76 Conn. 201

MUNROE

v. HARTFORD ST. RT. CO.

Supreme Court of Errors of Connecticut.

Dec. 18, 1903.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Action by Dwight D. Munroe against the Hartford Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was the owner of a pair of: horses and wagon, used for the daily delivery of milk upon a route including Asylum avenue, in the city of Hartford, and driven by his servant, Brewer. The defendant operated an electric railroad upon Asylum avenue. At the time of the injury complained of, the plaintiff's team was standing across Asylum avenue, with the wagon upon the tracks of defendant's railroad, the plaintiff's servant, Brewer, being at that time in the kitchen of a neighboring house occupied by one Pattenden. While thus standing, the wagon was struck by a car of defendant, thrown off the track, and the wagon and its contents injured. The complaint charges the defendant with negligence, in that it "negligently struck said wagon, as it was standing stationary on said tracks," while "running a car at a high rate of speed." The testimony affecting the claimed negligence of the defendant's motorman in permitting the car to strike the wagon, as well as the testimony affecting the claimed negligence of Brewer in permitting his team to stand across the tracks, was somewhat contradictory. It appeared that the plaintiffs horses were gentle, intelligent, accustomed to the milk route, and to standing unattended in front of houses of customers while the driver delivered the milk put up in bottles; that in this instance Brewer left the horses unhitched and unattended, while he was in Pattenden's house. for the purpose of delivering milk and immediately returning as usual; that he remained in the house for the purpose of looking up and settling Pattenden's milk account, consuming much moretime than usual, and on coming out of the house heard the crash of collision. The evidence was conflicting as to the actual time spent in the house, Brewer stating it was 10 or 15 minutes, and other witnesses estimating it was a less time. The defendant claimed that the conduct of Brewer in thus leaving the horses and remaining in Pattenden's house was negligence contributing to the accident, and also constituted a violation of law contributing to the injury, and that such illegal conduct, if found to be a proximate cause of the injury, is a conclusive bar to the plaintiff's right to recover in this action, and not merely evidence of contributory negligence; and in this connection produced in evidence an ordinance of the city of Hartford which declared "leaving any horse unhitched * * * within any street or thoroughfare of said city" to be a nuisance, and punished such act by a fine of $5. The plaintiff controverted these claims, and, in addition to the evidence above mentioned, produced evidence tending to prove that the horses were so trained that they could take pretty good care of themselves in the street without a driver, and could swing the wagon round in the street better than it could be done by some drivers. In view of these claims upon this state of the evidence, the trial court instructed the jury as follows: "There is another element which enters or may enter into this case so as to affect the verdict which you can lawfully render in this case. This aspect of the case arises out of the ordinance of the city of Hartford relative to leaving any horse unhitched. Now, there is some ambiguity in the language of the ordinance in respect to the particular portion of the ordinance on which the claim in this case is made, which reads as follows: 'Permitting any animal to go at large in any highway or public place in the city or leaving any horse unhitched, or permitting any animal, wagon, or cart to stand upon or over any cross-walk, by the person having control at the time of the same, within any street or thoroughfare of said city—and the ordinance declares that a nuisance, and forbids it. I instruct you that that part of the ordinance applies to leaving a horse unhitched within any street or thoroughfare of said city—that is, the city of Hartford. Such an ordinance must receive reasonable interpretation. It is not true as matter of law that, in order to be free from a violation of the ordinance, a person having a horse on the street is obliged to hold the reins in his hand or hold the horse by the bit all the time that the horse remains unhitched on the street, but the horse must not be allowed to remain unhitched without at the same time being in the effective control of some person. What is effective control will largely depend upon the facts of the particular case. If the horse is timid and inexperienced, a different kind of control would be required than would be required in the case of a horse which is reliable and trained to submit to the control of his attendant. It is for you to determine under the circumstances of this case whether the horses were left by the driver, Brewer, unhitched and beyond his control. If you find that the horses remained on the street unhitched, but at the same time under the effective control of the driver, then there was no violation of the ordinance, and the claim of a violation falls to the ground. If you find that there was a violation of the ordinance, you will then inquire whether that violation directly contributed to the injury, and, if you find that the ordinance was violated by the driver and the violation directly contributed to the injury, the law is so that the plaintiff cannot recover in this action, and your verdict should be for the defendant." The reasons of appeal, among others, assign error in the portion of the charge above quoted, and in the admission of evidence.

John T. Robinson, for appellant.

Edward M. Day and George B. Thayer, for appellee.

HAMERSLEY, J. The purpose of the city ordinance is obvious. It assumes that any horse in a city street without a driver or keeper is a source of danger to the person and property of those using the street unless the horse is hitched, and that injury to such persons may be the natural result of leaving an unhitched horse in a city street. For the protection of...