Pitkin v. N.Y. & N. E. R. Co.

• Court: Connecticut Supreme Court
• Writing for the Court: ANDREWS, C. J.
• Citation: Pitkin v. N.Y. & N. E. R. Co., 30 A. 772, 64 Conn. 482 (Conn. 1894)
• Decision Date: 09 July 1894
• Parties: PITKIN et al. v. NEW YORK & N. E. R. CO.

30 A. 772

64 Conn. 482

PITKIN et al.

v. NEW YORK & N. E. R. CO.

Supreme Court of Errors of Connecticut.

July 9, 1894.

Appeal from superior court, Hartford county; George W. Wheeler, Judge.

Action by Henry E. Pitkin and another, as administrators of the estate of Evelyn R. Pitkin, against the New York & New England Railroad Company, to recover for the death of plaintiffs' intestate, alleged to have been caused through defendant's negligence. From a judgment in favor of plaintiffs, on a hearing in damages after a default, defendant appeals. Reversed.

Edward D. Robbins, for appellant.

George G. Sill and John A. Stoughton, for appellees.

ANDREWS, C. J. This was an appeal from a judgment awarding $4,000 and costs to the plaintiffs on a hearing in damages after a default. The plaintiffs are the administrators on the estate of Evelyn R. Pitkin, late of South Windsor, deceased. This suit was brought to recover damages for injuries done to the said deceased by the defendant. The complaint avers that on the 14th day of September, 1889, a train of the defendant came into collision with a horse and wagon driven by and in the possession of the said Evelyn R. Pitkin, at a grade crossing in the town of East Hartford; that by reason of such collision the vehicle was entirely destroyed, the said Evelyn was thrown a great distance, and received injuries from which, on said day, he died. As the complaint originally stood, the only paragraph which set forth any conduct for which damages were claimed was the fifth one, as follows: "Said collision occurred by reason of the negligence of the defendant corporation in failing to sound the whistle or ring the bell on said engine while approaching said crossing, and by reason of the great rate of speed at which they were running their train while approaching said crossing, and wholly by reason of the negligence and fault of the said railroad corporation, and without any negligence or fault on the part of the deceased, Evelyn R. Pitkin."

The complaint was returned to the superior court in Hartford county on the first Tuesday of October, 1890. On the 29th day of November following, the defendant gave notice of its intention to suffer a default according to the provision of chapter 157, Pub. Acts 1889. There was afterwards a motion to strike out paragraph 4 of the complaint, and certain words of the fifth paragraph. There was also a demurrer to the fourth paragraph, and to the same words of the fifth paragraph, and to the whole complaint. The motion to strike out was denied, and the demurrers were overruled. It was suggested in the argument before this court that the notice of intention to suffer a default has the same effect upon the pleadings as an actual default, and that the motion to strike out and the demurrers came too late. We cannot agree with this argument. The only effect of the act of 1889, above cited, is that, in a case where a default is suffered and no such notice has been given, the hearing in damages must be by a jury, and not by the court. The notice is not itself a default. Falken v. Railroad Co., 63 Conn. 258, 27 Atl. 1117. The motion to strike out the fourth paragraph should have been allowed. That paragraph, as it stands, does not allege any fact which forms a part of the plaintiffs' cause of action. As there was afterwards a default in the case, this error has become immaterial, and may be disregarded. Vail v. Hammond, 60 Conn 374, 22 Atl. 954. The motion to strike out, so far as it applied to parts of the fifth paragraph, was properly denied. The same may be said in respect to the demurrer to these parts of the complaint. The demurrer to the whole complaint was properly overruled. In the absence of averments to the contrary, it will always be presumed that, if there is no widow or husband or lineal descendants, there are heirs to whom a distribution of personal estate can be made according to section 1008 of the General Statutes.

Subsequent to the hearing and argument of the case, and, indeed, after the judgment had been rendered, an amendment to the complaint was made and allowed against the objection of the defendant, under circumstances stated in the finding, as follows: "After the hearing in damages was concluded, and before the judgment was rendered, the court instructed the clerk of the court to notify the plaintiffs that, if they desired, they would be permitted to amend their complaint as by amendment on file. Immediately after so Instructing the clerk, the court rendered judgment as on file. The plaintiffs immediately thereafter amended their complaint as on file. The defendant objected to the allowance of this amendment, and duly objected to said ruling of the court as on file." The amendment so made was this: "Par. 6. The defendant, without right or authority, changed said highway crossing from one passing under said railroad to a grade crossing. It constructed the approaches by an incline on each side of said railroad, by narrow embankments of nine feet on the surface thereof, and left the same unprotected by railings. The incline on the south side was irregular in its grade—in part five feet in one hundred,...