Richard v. New York, N.H. & H. R. Co.

• Decision Date: 23 February 1926
• Citation: 104 Conn. 229,132 A. 451
• Parties: RICHARD v. NEW YORK, N.H. & H. R. CO. WHITAKER ET AL. v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

132 A. 451

104 Conn. 229

RICHARD v. NEW YORK, N.H. & H. R. CO.

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

Supreme Court of Errors of Connecticut.

February 23, 1926

Appeal from Superior Court, Hartford County; Allyn L. Brown, Judge.

Actions by John G. Richard and by George L. Whitaker and others against the New York, New Haven & Hartford Railroad Company. Verdict for the plaintiff in each case, and defendant appeals in each case. No error.

Evidence as to last clear chance to avoid striking wagon at crossing held sufficient to support recovery.

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

William H. Fogerty, of Hartford, for appellees.

Argued before WHEELER, C.J., and CURTIS, KEELER, MALTBIE, and HAINES, JJ.

WHEELER, C.J.

Richard seeks to recover from the defendant for the injury done to him, and Whitaker and Bacon seek to recover for the destruction of the horses and wagon and the damage done the harnesses, resulting from the engine of defendant having, at the Van Dyke grade crossing in the city of Hartford, run against the rear of a load of lumber upon a reach wagon drawn by a team of horses belonging to Whitaker and Bacon and driven by Richard.

The controverted issues in the case were as to the negligence of the defendant, the contributory negligence of Richard, and the application of the last clear chance doctrine to the facts in evidence. The appeal is from the denial of a motion of defendant to set aside verdicts in favor of the plaintiffs and for errors in the charge. The defendant contends that the trial court erred in refusing to grant its motion to set aside the verdicts, for the reason that the plaintiffs failed to establish by the weight of the evidence the negligence, as alleged, of the defendant, and also failed to establish by the great weight of the evidence the plaintiff's freedom from contributory negligence. The grounds of error are manifestly not well taken. A verdict which is against the preponderance of the evidence, or against the weight, or even the great weight of the evidence or reaches a conclusion which the court upon an examination of the evidence would not have reached, will not be set aside upon either of these grounds. Hewitt v. Wheeler et al., 23 Conn. 284, 302; Hill v. Bennett et al., 23 Conn. 363, 365; Palmer v. Hyde, 4 Conn. 426; Daley v. Norwich & W. R. Co., 26 Conn. 591, 592, 68 Am.Dec. 413; Housatonic Railroad Co. v. Knowles, 30 Conn. 313, 314. Similarly the verdict will not be set aside where the evidence is conflicting, unless its manifest injustice is " so plain and palpable as to justify the suspicion that the jury or some of its members were influenced by prejudice, corruption, or partiality." Roma v. Thames River Specialties Co., 96 A. 169, 90 Conn. 18, 20; Donovan v. Conn. Co., 84 A. 288, 86 Conn. 82, 85. This is an application of the general rule that a verdict which upon the evidence the jury could not reasonably have reached will be set aside. Steinert v Whitcomb, 79 A. 675, 84 Conn. 262, 264; Burr v. Harty, 52 A. 724, 75 Conn. 127, 129; Flynn v. West Hartford, 118 A. 517, 98 Conn. 83, 84; Bates v. Carroll, 122 A. 562, 99 Conn. 677.

Another application of the rule is in the rare case where the physical facts resolve the apparent conflict in the evidence by showing that the testimony which created it is either unintentionally or intentionally untrue because in conflict with the indisputable physical facts. Gianotta v. New York, N.H. & H. R. Co., 120 A. 560, 98 Conn. 743, 744. Not infrequently we say the verdict will not be set aside unless it is manifestly and palpably against the evidence; another form of saying that the verdict will not be set aside unless it be one which the jury could not reasonably have reached. The defendant's grounds of error that the verdicts are against the weight of evidence and against the great weight of evidence find no support in our law. Its further claim that the facts in evidence bring the case within Gianotta v. New York, N.H. & H. R. Co., supra, finds no support in the evidence. The jury might reasonably have credited the evidence offered by the plaintiffs, and reasonably rendered their verdicts. We reach this conclusion without reliance upon our unquestioned rules that the decision of the trial court is entitled to great weight, and that every presumption supports the action of the trial court in his decision upon a motion to set aside a verdict.

The only assignments of error in the additional appeal which we need consider are those which concern the application of the last clear chance doctrine to the facts before the jury, the incorrectness and inadequacy of the charge upon this subject, and to the over-emphasis placed upon it in the manner in which the court submitted it to the jury. Consideration of whether this doctrine was applicable requires that we have before us the essential facts which the plaintiff offered evidence to prove, and which the jury might reasonably have found, and they are these:

On March 3, 1924, Richard was driving a reach wagon, heavily loaded with 3,000 feet of lumber, parallel to the defendant's main tracks for about 250 feet at a speed of about 3 miles an hour until he came to within 25 feet of the Van Dyke highway crossing--the highway at this point being a dirt road frozen and rough--when he stopped his team, got off the wagon, tightened a chain around his load, looked and listened for a train, and then mounted the load and continued to look in both directions for a train until his horses reached the tracks, and, neither seeing nor hearing a train, he drove upon the tracks, and thereafter did not look for a train, but gave his attention to his team. As the planking of the crossing was rough, he had to slow down and watch for holes, lest he lose his load or his horses stumble and injure themselves, and, due to the noise of his wagon, he did not hear the approaching train. The traveled way on which Richard was proceeding as it approached the tracks formed an angle of 45 degrees with the latter at the crossing. Richard drove on across the 65 feet of this crossing at a speed of about 1 1/2 miles an hour. As he drove on,...