Pigeon v. Lane

CourtSupreme Court of Connecticut
Citation80 Conn. 237,67 A. 886
Decision Date22 October 1907
PartiesPIGEON 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: "On or about the 14th day of January, 1905, the plaintiff, a minor of the age of 14 years, was employed by the defendants, who were engaged in growing, preparing, and marketing tobacco in the town of Granby, in said Hartford county. On said day, the defendants sent their driver, one Charles Rinski, in charge of a certain sleigh to go from their warehouse in the town of Granby to the village of Tariffville in order to convey the plaintiff and other of their employés from said village of Tariffville to the said warehouse. The defendants placed in charge of said sleigh one Charles Rinski, as their agent and the driver thereof. On said day the defendants, by their agent, the said Rinski, offered and undertook to convey the plaintiff in said sleigh from said Tariffville to said warehouse, and the plaintiff accepted said offer and entered said conveyance. Said Rinski, as the agent of the defendants, then and there negligently, carelessly, and improperly overloaded said conveyance by accepting more passengers than could ride with safety thereon, and allowing the same to remain thereon during the drive. Said driver carelessly, negligently, and improperly drove said conveyance, containing the plaintiff with other employés of the defendants, along the public highway in said Tariffville in such a manner that the said sleigh violently collided with the bridge across the Farmington river, near the said village, and in said collision crushed the left leg of the plaintiff, rendering it necessary to amputate it. Said injury to the plaintiff was caused by said negligent overloading, as aforesaid, and by said negligent, careless, and improper driving of said conveyance, all of which was done by the defendants through their agent and driver, the said Rinski. No act or conduct of the plaintiff contributed to cause the injury."

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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46 cases
  • Great Southern Lumber Co. v. Hamilton
    • United States
    • Mississippi Supreme Court
    • November 10, 1924
    ... ... riding. Moffatt v. Bateman, L. R. 3 P. C. (Eng.) ... 115, 22 L. T. N. S. 140, 6 Mo. P. C. C. (N. S.) 369 ... Compare Pigeon v. Lane, 80 Conn. 237, 11 Ann. Cas ... 317, 67 A. 866; Duhme v. Hamburg-American Packet ... Co., 184 N.W. 404, 77 N.E. 386, 112 Am. St. Rep. 615; ... ...
  • Massaletti v. Fitzroy
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 29, 1917
    ...case was decided. In that connection she has relied upon Patnode v. Foote, 153 App. Div. 494,138 N. Y. Supp. 221;Pigeon v. Lane, 80 Conn. 237, 67 Atl. 886,11 Ann. Cas. 371; and Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319,50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342. In addition to thes......
  • Dantzler Shipbuilding & Dry Docks Co. v. Hurley
    • United States
    • Mississippi Supreme Court
    • March 31, 1919
    ... ... Waggoner, 90 Ill.App. 556; L. N. R. Co. v ... Scott, 108 N.Y. 392; Chattanooga Rapid Transit Co ... v. Venable, 51 L. R. A. 886; Pigeon v. Lane, 80 ... Conn. 237; Ellington v. Beaver Dam Co., 93 Ga. 53; ... Russell v. Hudson River Co., 17 N.Y. 134; ... Robertson v. Greenleaf ... ...
  • Howes v. Stark Bros. Nurseries & Orchards Co.
    • United States
    • Missouri Court of Appeals
    • January 7, 1930
    ... ... employee and the employer under a like transportation was ... that of master and servant. [ Pigeon v. Lane, 80 ... Conn. 237, 67 A. 886, 11 Ann. Cas. 371.] ... Thus the ... employer might designate the place where the automobile was ... to be ... ...
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