Rutkowski v. Connecticut Light & Power Co.

• Decision Date: 13 December 1923
• Parties: RUTKOWSKI v. CONNECTICUT LIGHT & POWER CO. (TWO CASES).
• Court: Connecticut Supreme Court

123 A. 25

100 Conn. 49

RUTKOWSKI v. CONNECTICUT LIGHT & POWER CO. (TWO CASES).

Supreme Court of Errors of Connecticut.

December 13, 1923

Appeal from Superior Court, Hartford County; John W. Banks, Judge.

Separate actions by Florence Rutkowski and Peter Rutkowski against the Connecticut Light & Power Company consolidated for trial. Judgment for plaintiff in each case, and defendant appeals. No error.

The plaintiff in the first of these actions is a girl who was five years old when she was injured in the manner described in her complaint, and the plaintiff in the second action is her father, who sued to recover the expenditures he was compelled to make by reason of her injuries. The material allegations relating to the defendant's liability are the same in both cases, and set out that for a long time before September 15, 1922, the defendant, for the purpose of carrying on its business of selling and distributing electricity, maintained wires carrying a high voltage of electricity on poles along a street in New Britain, and for a long time had negligently allowed one of these wires to be in contact with a tree without proper protection therefrom; that this wire broke on September 15, 1922, fell from its pole, and struck the plaintiff child, who was walking on the sidewalk below. The answers denied these allegations. The two cases were tried together. The jury found the issues for the plaintiff in each case, and awarded to the child $10,000 damages, and to the father $610.21. The trial court denied motions to set aside these verdicts as against the evidence, and granted the motion to set aside the verdict in favor of the child on the ground that the damages were excessive unless the plaintiff file a remittitur of $2,500. This the plaintiff did, and the court thereupon rendered judgment in her favor for $7,500. The defendant appealed.

William E. Thoms, of Waterbury, for appellant.

Josiah H. Peck, of Hartford, and William F. Mangan, of New Britain for appellees.

BURPEE, J. (after stating the facts as above).

The first reason of appeal depends upon the refusal of the trial court to set aside the verdicts on the ground that they were against the evidence produced in the trial of the causes. The defendant asserts that the plaintiffs failed to produce any evidence of the negligence of the defendant. It may be admitted, as the trial court observed, that the allegations of negligence in the complaints might have been more exact but, in the absence of any objection by the defendant before the trial, they may fairly be interpreted to describe the negligence on which the plaintiffs relied. They produced evidence to prove that the injured child was burned by coming in contact with a wire carrying a high voltage of electricity, which was maintained and solely controlled by the defendant in its business, and which had been broken and was lying on the sidewalk of a public street; that the defendant for a long time had known this wire was rubbing against the branches of a tree through which it was strung, and had done nothing to prevent it; that this rubbing wore off the insulation on this wire along six inches of its surface, and finally caused it to break and fall. The record shows that the defendant offered no evidence concerning these matters, but merely claimed to have proved that at about the time the wire was broken the wind was blowing at the rate of 25 miles an hour. In this situation the jury could reasonably draw the inference that the defendant was negligent substantially in the manner indicated in the complaints. Having reached that conclusion, it remained for the jury to determine whether the negligence of the plaintiff child materially contributed to cause her injuries. This was a matter for them exclusively to decide by applying their judgment and experience to the facts which they should find to have been disclosed by the evidence. Brown v. Page, 98 Conn. 141, 146, 119 A. 44. But among such facts, facts concerning which no direct or affirmative evidence had been produced might be disclosed by logical inference. It is true that the record in this case contains no evidence relating to the conduct of this child at any time before the accident. It discloses only that the broken wire had been lying for five or ten minutes on the sidewalk in front of the house in which the child lived before she was discovered lying there unconscious and grasping in her smoking right hand that part of the wire from which the insulation had been worn off, and with several burns on her legs. How she came in contact with the wire is not revealed. The conclusion most unfavorable to this plaintiff which the jury might have reached on the evidence before them would be that she carelessly seized the dangling wire, impelled by childish curiosity. Then it would be their duty to decide whether such conduct should be deemed contributory negligence in a child of five years of age. The trial court correctly instructed them upon this matter, saying:

" In order to recover, the plaintiff must prove not only that her injuries were caused by the negligence of the defendant as...