Pratt, Read & Co. v. New York, N.H. & H. R. Co.

• Decision Date: 30 July 1925
• Citation: 130 A. 102,102 Conn. 735
• Parties: PRATT, READ & CO. ET AL. v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

130 A. 102

102 Conn. 735

PRATT, READ & CO. ET AL. v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

July 30, 1925

Appeal from Superior Court, Middlesex County; Arthur F. Ells, Judge.

Action by Pratt, Read & Co. and another against the New York, New Haven & Hartford Railroad Company. Judgment for defendant and plaintiffs appeal. Error, and new trial ordered.

Arthur T. Keefe and Charles L. Smiddy, both of New London, for appellant Pratt, Read & Co.

George C. Morgan and Abel P. Tanner, both of New London, for appellant Rogers.

James W. Carpenter, of New York City, for appellee.

WHEELER, C.J.

Upon the trial the plaintiffs offered evidence to prove these facts. The plaintiff Rogers, a resident of Saybrook, was employed by Pratt, Read & Co., at Deep River. As a part of the wages paid their employees, the company transported by motorbus its employees, including Rogers, from their homes to its place of business. The defendant operated a railroad from Saybrook Point to Saybrook Junction, and thence to Hartford as a common carrier of passengers and merchandise in cars drawn by engines propelled by steam. A short distance south of the station at Saybrook Junction, the old Boston Post road, a main public highway between Boston and New York, and much traveled, crossed at grade defendant's tracks. The crossing was a dangerous one, and due care required a flagman, gates, electric signals, or some other suitable means to warn and protect persons using the crossing from approaching trains. On June 1, 1920, Rogers entered at Saybrook this motor-bus with other employees of Pratt, Read & Co., and occupied the rear seat while the side curtains of the bus were drawn, thus preventing a view from the sides by the passengers. Three tracks of defendant crossed the Boston Post road at this point, the first of which as the crossing is approached from the north is a curve known as a " Y," the other two tracks being straight. At the time the bus approached the crossing, the defendant had caused and permitted a number of freight cars to stand upon the " Y" track in such a position that the view of the driver of the bus, Merrill, could not see an approaching train upon either of these straight tracks. When the bus had crossed the first two of these tracks and had gotten onto the third track, a passenger train of defendant, traveling at a great rate of speed and approaching from Saybrook Point to Saybrook Junction, struck the bus and injured Rogers. Defendant gave no warning of the approach of the train by means of a whistle, bell or other device for signaling the approach of the train, or furnished any other adequate warning of the approach of the train. Rogers, the driver, Merrill, and the other occupants of the bus did not hear any whistle blown or any bell sounded on the train. The engineer of the train knew that this crossing was a dangerous and unprotected crossing, and that more than ordinary care was required in the operation of trains over the crossing. Because the engineer could not see the approach of the bus, due to the obstruction of his vision by the freight cars on the " Y" track and a garage and other objects, he should have kept a vigilant outlook for travelers using such crossing, and should have continuously rung the bell of the engine and blown its whistle even beyond the statutory requirements. The engineer was not keeping a lookout when approaching the crossing. The defendant negligently failed, by means of a flagman, gates, electric signal, or other suitable means at the crossing, to warn persons, including Rogers, about to use the same, of approaching trains on its tracks. Rogers was in the exercise of reasonable care, and had no control over the operation of the bus. The defendant knew, or ought to have known, of the approach of the bus, and could have avoided the injuries to Rogers if it had used reasonable care. Pratt Read & Co. paid to Rogers through its insurer carrier, the Royal Indemnity Company, $4,836.44, being the compensation awarded him by the compensation commissioner.

The errors assigned are certain instructions of the court and rulings upon evidence. The complaint alleged, and plaintiffs' evidence tended to prove, some seven or more acts of negligence. These the court detailed in his charge as: " (1) Great speed. (2) Negligently failed to keep a proper lookout on said engine. (3) Negligently failed to sound the whistle. (4) Negligently failed to ring the bell. (5) Negligently failed to give any timely and sufficient warning to the driver of the automobile. (6) Negligently ran the locomotive into the automobile." A seventh ground contained in paragraph 5 of the complaint, the court excluded from the consideration of the jury.

Plaintiffs complain of the charge that:

" The plaintiffs are required to prove all the material allegations of their complaint, and this applies not only to proof of the negligence or the lack of contributory negligence, but to the injuries and damages suffered."

" At no point in the charge," one of the plaintiffs' briefs says, " does the court refer to the rule that proof of one of many acts of negligence alleged in the complaint is sufficient to support a plaintiffs' verdict." In four other places in the charge the language is susceptible of the construction that it was essential for the jury to find proven all of the material allegations of the complaint as to negligence. Our rule is undoubted. " Where several acts of negligence cause but one injury, the plaintiff may allege all the acts of negligence in one count, and aver that they were the cause, and any one of them proved upon the trial will sustain his complaint." Ashborn v. Waterbury, 70 Conn. 551, 555, 40 A. 458, 459; Dean v. Sharon, 72 Conn. 667, 673, 45 A. 963. Plaintiffs' counsel are incorrect in saying that the court nowhere charged that proof of one of many acts of negligence would be sufficient to support a plaintiff's verdict. In the early part of the charge the court read the allegations of negligence in the complaint, and then said:

" They must one or more of them be proved, as no other acts of negligence than those which are fairly stated in the complaint can serve as a basis for recovery by these plaintiffs."

Again, in the latter half of the charge, the court said:

" If you find that the defendant was not negligent in any of the ways alleged, then of course the plaintiffs cannot recover, and your verdict must be for the defendant. If you find that the collision occurred by reason of the negligence of the defendant, as set forth in the complaint, then you will consider the question as to whether the plaintiff Rogers was guilty of contributory negligence, preventing the recovery of both plaintiffs."

The court groups a correct statement of the law with an inadequate one. Yet there should be no question of the jury's understanding of this to be that failure to prove the negligence in any one of the ways alleged in the complaint would be fatal to the plaintiffs' right of recovery. The charge ought not to contain contradictory statements of the law, or statements which might be so construed; neither ought the charge to be required to be, or expected to be, as accurate in its instructions upon legal propositions as the opinions of a court of last resort. A charge is often required to be delivered upon meager opportunity for preparation, and under the strain of an intense legal battle. We examine the charge to see if it fairly presents the case to the jury in such way that injustice was not done under the rules of law to the legal rights of either litigant, and not, with legal microscope, to search for technical flaws, inexact, inadvertent, or contradictory statements. If such there be, we test them by the rule stated. Applying this test to this charge, we are of the opinion that the jury ought, upon the whole charge, to have understood that the plaintiffs, upon proof of any one of the acts of negligence alleged, would have been entitled to have found that the plaintiffs had established the defendant's negligence.

Error is assigned " in failing to charge the jury upon the subject of concurrent negligence as applied to the facts disclosed by the evidence." Neither in their complaints nor in their requests to charge had the plaintiffs claimed that the accident resulted from the concurrent negligence of defendant and Merrill, driver of the bus. Nor did the facts claimed to have been proven by the plaintiffs make it incumbent upon the court, of its own motion, to have instructed the jury as to the possibility of the claim. It does appear that defendant offered evidence to prove, and claimed to have proven, that the accident happened through the negligence of Merrill, the driver of the bus, but defendant, of course, was not making the claim that the accident happened through the concurrent negligence of it and the driver. While the facts claimed to have been proven would have made it possible for the plaintiffs to have made this claim, or for the court of its own motion to have presented it to the jury, we would be quite unwilling to hold the court in error, under the circumstances of this case, for failing to present to the jury a claim of law not made by the plaintiffs, and not necessarily required by the evidence before the jury.

The defendant's train was approaching an admittedly unprotected and dangerous crossing. The plaintiffs offered evidence to prove that, in approaching this crossing the engineer had taken his eye off the crossing, and plaintiffs now claim that, if this was necessary in the performance of his duty, he ought to have so reduced the speed of the train that he could give his undivided attention to this crossing. Plaintiffs claim that the court excluded from the...