Pigeon v. Lane
Court | Supreme Court of Connecticut |
Citation | 80 Conn. 237,67 A. 886 |
Decision Date | 22 October 1907 |
Parties | PIGEON v. LANE et al. |
Appeal from Superior Court, Hartford County; George W. Wheeler, Judge.
Action by William Pigeon against J. Warren Lane and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.
The substituted complaint contains these allegations:
Upon the trial the court instructed the jury, in substance and effect: That the plaintiff, whether he was there by a right arising from his contract of employment, or as a privilege of his employment, or by license, permission, or invitation of the defendants, was, while on the sleigh, a servant of the defendants, and a fellow servant of Rinski; that although the jury should find that the injury complained of was caused by Rinski's negligence, and without any contributory negligence of the plaintiff, the latter could not recover, because Rinski's negligence was one of the risks assumed by the plaintiff when he entered the defendants' employment; and that upon the evidence presented there was no verdict possible in law for the plaintiff. The court thereupon directed the jury to render a verdict for the defendants.
J. Gilbert Calhoun and Stewart N. Dunning, for appellant Edward M. Day, for appellees.
HALL, J. (after stating the facts as above). The action of the court in directing a verdict for the defendants must be held to have been erroneous, if it appears from the record that upon the evidence before them the jury might properly have found facts which would have sustained a verdict for the plaintiff. We have not the evidence before us, but only statements in the finding of certain uncontested facts and of other controverted questions of fact. Among the latter are the questions of the alleged negligence of Rinski and of the contributory negligence of the plaintiff both of which the court in its charge and direction to the jury assumed might, upon the evidence, have been found by the jury in favor of the plaintiff. Whether the plaintiff was estopped by the averments of his complaint from proving or claiming that the relation between the defendants and plaintiff at the time of the injury was that of licensor and licensee, and not that of employer and employé, and whether the negligence alleged in the complaint was such as could render the defendants liable as licensors, are questions which were not passed upon by the trial court. Indeed, the action of the trial court in taking the case from the jury was based entirely upon the court's conclusion that the defendants were relieved from liability by the fellow servant law, however any disputed question of fact in the case might be decided by the jury.
That the plaintiff's injury was caused by the negligence of the defendants as licensors, and not as employers, is not so inconsistent with, or variant from, the allegations of the complaint as to estop or prevent the plaintiff from proving that fact. While it is true that the complaint alleges that the plaintiff was an employé of the defendants, it does not aver that it was a part of the contract of employment that the defendants should carry him from Tariffville to Granby, or that while he was upon the sleigh either he or the defendants were engaged in the performance of any of the duties of such employment, and a separate paragraph of the complaint alleges that the defendants offered and undertook to carry the plaintiff, and that he accepted the offer. Although, if the plaintiff was injured while riding upon the sleigh as a mere licensee, the defendants could only be held liable for their active negligence in causing the injury, which would include their own or their servant Rinski's negligent acts by which the danger of riding upon the conveyance was increased, or a new danger created, while the plaintiff was riding under such license (Pomponio v. N. Y., N. H. & H. R. R. Co., 66 Conn. 528-538, 34 Atl. 491, 32 L. R. A. 530, 50 Am. St. Rep. 124), the allegation that the injury was caused by the careless, negligent, and improper driving of the conveyance by ...
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